J 

< 

.     u 

z  u    . 

C  >  t/1 
IP  <  u 
Z    .  J 


jnj 


THE  LIBRARY 
OF 


THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


GIFT  OF 

John  Adams 


J 
< 

.     u 

z  u    . 
c  >  Ifl 

oi  <  id 
z    .  J 

-iu 

m  |_  £ 

<-.    m   -r 

\»/      V*0      i_ 

(1   .  < 

.  u) 


5  n  j 


A  MANUAL 


ELEMENTARY  LAW 


BEING   A   SUMMARY  OF 


THE  WELL-SETTLED  ELEMENTARY  PRINCIPLES 
OF  AMERICAN  LAW 


BY 

WILLIAM  P.  FISHBACK 

LATE  DEAN  OF  THE  INDIANA  LAW  SCHOOL 


FOURTH  REVISED  IMPRESSION 


INDIANAPOLIS  AND  KANSAS  CITY 

THE  BOWEN-MERRILL  COMPANY 
1901 


Copyright  1896 

BY 

THE  BOWEN-MERRILL  CO. 


PRESS  OF 

CARLON  &  HOLLENBE^K, 

INDIANAPOLIS. 


\3 


< 


PREFACE 


In  this  manual  an  effort  has  been  made  to  put  the 
reader  in  possession  of  a  summary  of  the  well-settled 
elementary  principles  of  the  law,  by  stating  them 
dogmatically  in  language  ay  simple  as  the  subject 
admits  of.  After  all  that  is  said  derisively  about  the 
glorious  uncertainty  of  the  law,  there  are  many  rules 
of  civil  action  regulating  the  political,  business 
and  domestic  relations  of  life  which  may  be  said  to 
be  settled.  It  has  been  the  effort  in  these  pages  to 
collect  these  rules  from  authoritative  sources  and 
print  them  in  a  form  at  once  comprehensive  and 
compact.  What  may  be  objected  to  as  a  defect  I 
count  one  of  the  chief  merits  of  the  book,  viz.,  the 
absence  of  notes  and  citations.  There  is  no  claim 
to  originality  except  in  the  matter  of  the  method  of 
stating  and  arranging  the  materials  which  have  been 
accumulated  by  the  labors  of  others.  The  fruit  of 
these  labors  has  been  appropriated  with  freedom 
and  without  compunction,  and  it  is  my  belief  that 
no  rule  of  law  is  stated  which  is  not  supported  by 
adequate  authority.  It  would  have  been  an  easy 
matter  to  swell  the  size  of  the  volume  by  a  collection 
of  foot-notes  and  a  list  of  decided  cases;  but  for  the 
beginner  I  believe  that  such  citations  tend  to  con- 
fuse, ratherthan  to  instruct.    Of  course,  this  does  not 

(v) 


yi  PREFACE. 

apply  to  advanced  students,  or  to  those  who  are  pur- 
suing a  post-graduate  or  university  course  of  tech- 
nical professional  instruction,  but  it  is  relevant  to 
the  vast  majority  of  beginners  who  are  to  make  up  the 
bulk  of  the  legal  profession. 

The  book  may  have  its  use  in  other  fields.  The 
general  reader  may  find  here  in  outline  a  statement 
of  the  sources  and  foundations  of  the  laws  under 
which  we  live,  as  well  as  many  rules  and  principles 
of  business  which  may  serve  to  admonish  and  guide 
him  in  the  performance  of  the  duties  of  citizenship. 
Some  knowledge  of  these  should  form  a  part  of  the 
education  of  every  citizen,  and  a  familiar  acquaint- 
ance with  them  will  create  in  the  minds  of  all  a 
higher  sense  of  the  dignity  and  usefulness  of  the 
legal  profession,  and  a  better  appreciation  of  the 
value  of  upholding  a  system  of  jurisprudence,  the 
maintenance  of  which  is  essential  to  the  progress  if 
not  to  the  preservation  of  society.  W.  P.  F. 

January,  1896. 


TABLE  OF  CONTENTS. 


CHAPTER  I. 

laws  in  general. 
Section.  Page. 

1.  Necessity  for  laws 1 

2.  Human  laws 1 

3.  Laws  in  the  United  States 2 

4-5.     Lawrs  and  morals 2 

6.     Municipal  law 3 

7-8.    The  law-making  power 4 

9.    The  supreme  court 4 

10-12.    Kinds  of  laws  in  the  United  States 6 

CHAPTER  II. 

INTERNATIONAL   LAW    AND   CITIZENSHIP. 

13-14.     International  law 8 

15-16.     Neutrality 9 

17-19.     Interstate  law 10 

20-21.    Citizenship 11 

22.  Aliens 13 

CHAPTER  III. 

WRITTEN    LAWS. 

23.  Constitutions 14 

24.  Statutes 14 

25.  Rules  as  to  validity 15 

26.  Retroactive  statutes 16 

27.  Public  or  private 16 

28-31.     Interpretation 17 

(Vii) 


Vlll 


TABLE  OF  CONTENTS. 


CHAPTER  IV. 
unwritten  laws. 

Section.  Page. 

32.  Common  law 20 

33.  Its  sources 20 

34.  Its  growth 21 

35.  Function  of  the  courts  22 

36.  Common  law  in  the  United  States 23 

37.  Importance  of  precedents.... 24 

38-39.     Customs 24 

CHAPTER    V. 

RIGHTS. 

40.  Legal  rights 28 

41.  Meaning  of  natural  rights 29 

42.  Right  to  personal  security 29 

43.  Right  to  life 29 

44.  Right  of  personal  liberty 30 

45.  Habeas  Corpus 31 

46.  Right  to  health  31 

47.  Right  to  reputation  31 

48-49.     Right  of  property 32 

CHAPTER  VI. 

PROPERTY    IN   GENERAL. 

50.  Basis  of  ownership 34 

51.  Origin  of  private  ownership 35 

52.  Its  importance 35 

53.  Kinds  of  property 36 


CHAPTER  VII. 

REAL   PROPERTY. 

54-55.    Titles  in  the  United  States 39 

56.  Lands  acquired  by  treaty 40 

57.  Indian  titles 40 

58.  Injustice  to  the  Indians 41 

59.  Definitions 42 

60.  Lands  bounded  by  streams 43 

61-62.     Islands 44 


TABLE  OF  CONTENTS.  ix 

Section.  Paqb. 

63-64.     Fixtures 4") 

65-66.     Boundaries 47 

67.  Land  bounded  by  highways  47 

68.  Appurtenances 48 

CHAPTER  VIII. 

INCORPOREAL    PROPERTY. 

69.  Kinds  of  incorporeal  property 49 

70.  Advowson 49 

71.  Tithes 49 

72.  Right  of  common 50 

73.  Right  of  way 51 

74.  Private  rigbts  of  way 5  I 

75.  Temporary  right  of  way 54 

76.  Easement 54 

77.  Offices  and  dignities 55 

78.  Franchises 56 

79.  Rents 56 

L  80-81.     Liens 56 

CHAPTER    IX. 

FEUDAL   SYSTEM. 

82.  Origin  and  nature 59 

83.  Allodial  lands  60 

84.  Wardship  and  marriage 61 

85.  Local  courts H_» 

86.  Homage  and  fealty 62 

87.  Military  service 63 

88.  Other  obligations  of  tenant 6  I 

89.  Domesday  book '14 

90.  Escuage »>4 

91.  Changes  in  feudal  system 65 

92.  Abolition  of  the  system 65 

CHAPTER  X. 

ANCIENT   TENCRES. 

93-94.     Tenure <17 

95.  Lord  paramount 67 

96.  Middle  lord  and  tenant paravail 67 


X  TABLE  OF  CONTENTS. 

Section.  Page. 

97.  Free  or  base  tenure 67 

98.  Frank  tenement  or  villenage 68 

99.  Knight-service 68 

100.  Aids 68 

101.  Relief 68 

102.  Primer  seizin 69 

103.  Wardship 69 

104.  Marriage 69 

105.  Fines 1 69 

106.  Escheat 69 


CHAPTER  XI. 


MODERN    TENURES. 


107-108.  Influence  of  feudal  system 70 

109-110.  Restoration  of  allodial  tenure 71 

111.  Estates 71 

—  112.  Fee-simple 72 

113.  Fee  in  abeyance 72 

114.  Use  of  word  "  heirs  " 72 

—115.  Estates  for  life 73 

116.  Rights  of  life  tenant 74 

117.  Emblements „ 74 

118.  Taxes  and  interest 75 

119.  Waste 75 

—120.  Estates  for  years 75 

121.  Rent 76 

122.  Duration  of  tenancy 77 

123.  Distress 78 

124.  Apportionment  of  rent 79 

-425.  Estates  at  will 79 

126.  Estates  at  sufferance 79 

127.  Base  fee 79 

128.  Conditional  fee 80 

129-130.  Estates  in  tail..... 80-81 

131.  Tenancy  by  the  curtesy 82 

132.  Dower 82 

133.  Assignment  of  dower 83 

--134.  Estates  upon  condition 83 

135.  Estates  upon  condition  implied 83 

136.  Estates  upon  condition  expressed  84 

137.  Conditions  precedent  or  subsequent 84 


TABLE  OF  CONTENTS. 


XI 


Section.  Page. 

138.  Estates  in  remainder 85 

139.  Rule  in  Shelley's  Case 87 

140.  Executory  clevises 87 

141.  Estates  in  reversion 88 

142.  Estates  in  severalty 88 

143.  Joint  tenancy 88 

144.  Tenancy  in  common 89 

CHAPTER   XII. 

TITLE   TO  REAL  PROPERTY — HOW    ACQI'IRED. 

145.  "Ways  of  acquiring  title 90 

146.  Title  by  occupancy 90 

147.  Adverse  possession 91 

148.  Occupying  claimant 92 

149.  Title  by  marriage 92 

150-151.  Title  by  descent 92 

152.  Title  by  devise 93 

153-157.  Wills 94 

158.  Title  by  purchase 96 

159.  Title  bonds 97 

160.  Deeds  by  dispossessed  owners 97 

161.  Form  of  deeds 98 

162.  Record  of  deeds 98 

163.  Parties  to  deeds 98 

164.  Guardians'  deeds 99 

165.  Deeds  of  partners 99 

166.  Deeds  of  corporations 99 

167.  Powers  of  attorney 100 

168.  Deeds  by  officers  100 

169.  Description  of  land  100 

170-172.  Title  by  eminent  domain 101 

173.  Title  by  escheat 103 

174.  Title  by  forfeiture  103 


CHAPTER  XIII. 

PERSONAL   PROPERTY. 

175.     Definition  104 

17t;.     Title— How  acquired 104 

177.     Burial  rights 105 


Xll 


TABLE  OF  CONTENTS. 


CHAPTER  XIV. 

decedents'  estates. 

Section.  Page. 

178.  Testator  and  intestate 106 

179.  Statutes  of  descent  and  distribution 10tf 

180.  Administrator 106 

181.  Executor 107 

CHAPTER  XV. 

CONTRACTS     IN    GENERAL. 

182-183.  Growth  of  right  to  contract 109 

184.  Contract  denned 110 

185.  Capacity  of  parties -11 

186.  Void  and  voidable  contracts Ill 

187.  Executory  or  executed  contracts 112 

188.  Written  contracts 112 

189.  Parol  contracts 113 

190.  Express  contract 113 

191.  Meeting  of  minds 113 

192.  Time  of  contract 114 

193.  Implied  contracts 114 

194.  Contracts  of  record 115 


CHAPTER  XVI. 

PARTIES  TO   CONTRACTS. 

195.  Who  may  make  valid  contracts 116 

196.  Infants 117 

197.  Infants'  contracts  for  necessaries 117 

198.  Frauds  of  infants 118 

199.  Executed  contracts  of  infants 118 

200.  Disaffirmance  by  infants 118 

201.  Duress 119 

202.  Insane  persons 119 

203.  Drunkenness 120 

204.  Married  women 121 

205.  Corporations 121 

206-209.  Contracts  by  agents 122 


TABLE  OF  CONTENTS. 


Xlll 


CHAPTER  XVII. 
of  particular  contracts. 

Section.  Page. 

210.  Sale  and  exchange 127 

211.  Existence  of  thing  sold 127 

212.  Transferof  title 129 

213.  Delivery 129 

214.  Interpretation  of  contract 130 

215.  Bailment 131 

216.  Common  carrier 132 

217.  Partnership 134 

218.  Formation  of  partnership 135 

219.  Rights  of  partners 135 

220-222.     Dissolution  of  partnership 136 

223.  Individual  and  partnership  creditors 137 

224.  Rights  after  dissolution 138 

225.  Limited  partnerships 138 

226.  Good  will 138 


CHAPTER  XVIII. 
negotiable  instruments. 

227.  Definitions 139 

228.  Origin  of  the  law  merchant 139 

229.  Foreign  and  inland  bills 140 

230.  Form  of  bills 140 

231.  Indorsement 140 

232.  Duty  of  the  holder 141 

233.  Special  indorsements 141 

234.  Signatures  and  date 142 

235.  Certainty 142 

236.  Surety,  guarantor,  indorser  and  assignor 143 

237.  Law  of  the  place 144 

238.  Agents 144 

239.  Capacity  of  parties 145 

240.  Consideration 145 

241.  Purchase  for  value  without  notice 145 

242.  Bills  of  lading 145 


mr 


xiv  TABLE  OF  CONTENTS. 

CHAPTER  XIX. 

contracts  of    insurance. 
Section.  Page. 

243.  Definition 147 

244.  Contract,  how  made 147 

245.  How  interpreted 148 

246.  AVarranty  or  representation 148 

247.  Payment  of  premium  149 

248.  Waiver  of  payment 149 

249.  Insurable  interest 150 

250.  Increase  of  risk 150 

CHAPTER  XX. 

CONSIDERATION. 

251.  Definition 151 

252.  Adequacy  of  consideration 152 

253.  Prior  obligation  as  consideration 152 

254.  Release  by  creditors 153 

255.  Disputed  claims 153 

256.  Impossible  and  illegal  considerations 153 

257.  Executed  and  executory  considerations 154 

258.  Past  considerations 154 

259.  Failure  and  waiver  of  consideration 154 

CHAPTER  XXI. 

STATUTE   OF     FRAUDS. 

260.  History  of  the  statute 156 

261.  Provisions  of  the  statute 156 

262.  Promises  of  executors  or  administrators 157 

263.  Debt,  default  and  miscarriage 158 

264.  Original  or  collateral  obligation 158 

265.  Agreements  in  consideration  of  marriage 159 

266.  Contracts  for  sale  of  lands 159 

267.  Agreements  not  to  be  performed  within  a  year 160 

268.  The  note  or  memorandum 160 

269.  Signature  to  memorandum 162 

270.  Sale  of  goods,  wares  and  merchandise 162 


TABLE  OF  CONTENTS.  xv 

CHAPTER    XX I L 

corporations. 

Section.  Page. 

271.  Definition 164 

272.  Powers  of  corporations 165 

273.  Organization  of  corporations 165 

274.  Charter 166 

275.  Vested  rights 166 

276.  Dissolution 167 

CHAPTER  XXIII. 

SECURITY   OF  THE   PERSON. 

277.  The  right  to  life 168 

278.  When  life  may  be  taken 168 

279.  Remedies 169 

280.  Recovery  for  injuries  causing  death 169 

CHAPTER  XXIV. 

ASSAULT  AND   BATTERY. 

281.  Assault  defined 171 

282.  Ability  and  intent  to  injure 171 

283.  Battery  defined 172 

284.  Intent  of  the  wrong-doer 172 

285.  Consent  of  the  one  injured 172 

286.  Justification  for  battery 172 

287.  Self-defense 173 

288.  The  remedies 174 

CHAPTER  XXV. 

FALSE    IMPRISONMENT. 

289.  Definition 176 

290.  The  detention  or  restraint 17t> 

291.  Unlawfulness  of  the  restraint 17(1 

292.  Lawful  restraint  without  legal  process 177 

293.  Lawful  restraint  with  legal  process 17!> 

294.  Officers 179 

295.  Remedy 180 

296.  Privilege  from  arrest 180 

297.  Remedy  for  arrest  of  privileged  persons 181 


XVI 


TABLE  OF  CONTENTS. 
CHAPTER  XXVI. 


malicious  prosecution. 

Section.  Page. 

298.  Elements  of  the  wrong 182 

299.  The  malicious  motive 183 

300.  Absence  of  probable  cause 184 

301.  Proceeding  must  have  terminated 185 

302.  Malicious  prosecution  of  civil  actions 186 

303.  Malicious  abuse  of  process 186 

304.  Remedy 187 

CHAPTER  XXVII. 

DEFAMATION. 

305.  The  right  to  reputation 189 

306.  Libel  and  slander 190 

307.  Slander I90 

308.  Slander  imputing  crime 191 

309.  Slander  imputing  disease 192 

310.  Slander  affecting  office,  trade  or  profession 192 

311.  Slander  not  actionable  per  se 192 

312.  Slander  of  title 193 

313.  Libel I93 

314.  Definition 193 

315.  Newspapers  194 

316.  Publication 195 

317.  Construction 196 

318.  Certainty 197 

319.  Malice 198 

320.  Justification 200 

321.  Privilege 201 

322.  Absolute  privilege 201 

323.  Legislative  proceedings  202 

324.  Judicial  proceedings 202 

325.  Naval  and  military  matters 203 

326.  Qualified  privilege  203 

327.  Matters  of  public  interest  and  concern 204 

328.  Communications  made  under  duty 200 

329.  Communications  made  in  self-defense 207 

330.  Remedy 207 

331.  Damages . 2°7 


TABLE  OF  CONTENTS.  xvii 

CHAPTER  XXVIII. 

injuries  to  civil  am)  political  rights. 
Section.  Page. 

332.  General  nature I'll 

333.  Right  of  suffrage 211 

334.  Right  to  assemble 212 

335.  Right  to  bear  arms 213 

336.  Freedom  of  speech  and  of  the  press 213 

337.  Right  to  office 214 

338.  Religious  liberty 214 

339.  Right  to  education 215 

340.  Unlawful  searches 215 

341.  Performance  of  official  duties 216 

342.  Duties  of  the  legislature 217 

343.  Executive  and  administrative  duties 218 

344.  Judicial  duties 219 

345.  Public  duties  by  private  persons 220 

346.  Right  to  own  property  221 

347.  Right  to  make  contracts 222 

348.  Right  to  labor,  employ  labor  and  do  business 222 

349.  Strikes 221 

350.  Remedy 224 

CHAPTER  XXIX. 

FRAUD. 

351.  Kinds  of  fraud 225 

352.  Frauds  in  confidential  relations 225 

353.  Husband  and  wife 226 

354.  Parties  engaged  to  marry 226 

355.  Illegal  sexual  relations 227 

356.  Parent  and  child 228 

357.  Trustees 228 

358.  Principal  and  agent 22!' 

359.  Partners 230 

360.  Corporations 230 

361.  Attorneys,  physicians  and  clergymen 231 

362.  Persons  of  weak  mind 2.S1 

363.  Frauds  between  equals 233 

364.  Definition  of  fraud 233 

365.  Frauds  by  silence 234 

366.  Equal  opportunities  for  knowledge 235 


XViii  TABLE  OF  CONTENTS. 

Section.  Page. 

367.  Elements  of  fraud 235 

368.  Representations 236 

369.  Clearness  and  certainty 236 

370.  Matters  of  law..... 237 

371.  Matters  of  opinion 237 

372.  Matters  of  fact 238 

373.  Fraudulent  promises 238 

374.  Materiality 239 

375.  Falsity 239 

376.  Wrong-doer's  knowledge 239 

377.  Wrong-doer's    intent  that   the   representation  be 

acted  on 240 

378.  Who  entitled  to  rely  on  representations 240 

379.  Representations  must  have  been  acted  on 241 

380.  Injured  party's  belief 241 

381.  Damage 242 

382.  Remedy 242 

383.  Personal  injuries  through  fraud 242 

CHAPTER  XXX. 

NUISANCE. 

384.  How  related  to  negligence 244 

385.  Nuisance  defined 245 

386.  "  Coming  to  a  nuisance  " 247 

387.  Intent  or  motive  immaterial 248 

388.  Care  or  negligence  in  nuisance 248 

389.  What  may  be  nuisances 249 

390.  Kinds  of  nuisance 251 

391.  Public  nuisances 251 

392.  Private  nuisances 251 

393.  Nuisances  both  public  and  private 252 

394.  Authorized  nuisances 252 

395.  Obstruction  of  highways 253 

396.  What  is  a  highway 253 

397.  Purprestures  254 

398.  What  is  an  obstruction 254 

399.  Duration  of  the  obstruction 255 

400.  Objects  near  the  highway 255 

401.  Authorized  obstructions 255 

402.  The  special  injury ." 256 

403.  Remedies 257 

404.  Evidence  of  nuisance 258 


TABLE  OF  CONTENTS.  Xix 

CHAPTER  XXXI. 

negligence. 

Section.  Page. 

405.  Actionable  negligence 259 

406.  Contractor  tort 259 

407.  Elements  of  actionable  negligence 260 

408.  Definition 260 

409.  The  inadvertence 260 

410.  Inevitable  accident  261 

411.  Ordinary  care  under  the  circumstances 261 

412.  No  degrees  in  negligence 262 

413.  Acts  or  omissions 262 

414.  Legally  responsible  person 262 

415.  Intoxication 263 

416.  Physical  infirmity  263 

417.  The  person  to  whom  the  duty  is  owing  _'<U 

418.  The  duty 284 

419.  The  duty  implied  bylaw 264 

420.  The  damage 265 

421.  Cause  and  effect 265 

422.  Legal  connection  266 

423.  Definition  of  proximate  cause 266 

424.  Injured  person's  own  conduct 266 

425.  Injured  person's  unlawful  act  267 

426.  Contributory  negligence 268 

427.  Tests  of  contributory  negligence 268 

428.  Plaintiff 's  knowledge  of  danger 269 

429.  Danger  incurred  to  save  life 269 

430.  Persons  of  defective  powers 270 

431.  Misleading  conduct 271 

432.  Imputed  negligence 271 

433.  Imputed  negligence — Passenger  and  carrier 271 

434.  Imputed  negligence — Children  272 

435.  Presumptions  as  to  negligence 272 

CHAPTER  XXXII. 

ANIMALS. 

436.  Injuries  by  animals 274 

437.  Trespass  upon  land  274 

438.  Duty  of  owner  at  common  law 274 

439.  The  law  in  the  United  States 275 


TABLE  OF  CONTENTS. 


XX 

Section.  Page. 

440.  Remedies 275 

441.  Animals  not  trespassing 275 

442.  Owner's  knowledge  of  danger 276 

CHAPTER  XXXIII. 

HUSBAND  AND   WIFE. 

443.  Right  to  marry 277 

444.  Marriage  277 

445.  Illegal  marriage 278 

446.  Marriage  ceremony 278 

447.  Foreign  marriages 278 

448.  Duties  and  rights  of  husband  and  wife 279 

449.  Divorce 280 

450.  Injuries  between  husband  and  wife 281 

451.  Injuries  by  third  persons 281 

CHAPTER  XXXIV. 

PARENT   AND   CHILD. 

452.  Legitimacy 284 

453.  Rights  and  duties  of  parent  and  child 284 

454.  Wrongs  as  between  parent  and  child 285 

455.  Wrongs  by  third  persons 286 

456.  Child's  interest  in  parent 286 

457.  Parent's  interest  in  child 286 

458.  Physical  injuries  to  child 287 

459.  Enticing  away  the  child 287 

460.  Seduction 288 

CHAPTER  XXXV. 

GUARDIAN  AND  WARD. 

461.  Kinds  of  guardianship 290 

462.  Natural  guardian 290 

463.  Testamentary  guardian 290 

464.  Legal  guardian 291 

465.  Guardian  ad  litem 292 

466.  Next  friend 292 

467.  Rights  of  guardian  and  ward  in  each  other 293 

468.  Wrongs  between  guardian  and  ward 293 

469.  Guardian  of  the  insane 293 


TABLE  OF  CONTENTS. 


CHAPTER    XXXVI. 


XXI 


master  and  servant. 

Section.  Page. 

470.  Growth  of  the  relation 295 

471.  Apprentices 295 

472.  Who  is  a  master  or  servant 296 

473.  Independent  contractor 2W 

474.  The  contract  between  master  and  servant 297 

475.  Termination  of  the  relation 2'.'7 

476.  Discharge  by  the  master 298 

477.  Abandonment  by  the  servant 298 

478.  Wrongs  independent  of  contract 299 

479.  Liability  of  third  persons  to  the  master 299 

480.  Liability  of  third  persons  to  the  servant 300 

48E     Master's  liability  for  injury  to  others 300 

482.  Intended  and  unintended  wrongs 300 

483.  Servant's  liability  for  injury  to  others 301 

484.  Master's  liability  to  the  servant 301 

485.  Duties  of  master  to  servant 301 

486.  Risks  assumed  Ly  servant 302 

487.  Fellow-servants 302 

488.  Vice-principal 302 

489.  Servant's  liability  to  master 303 

CHAPTER  XXXVII. 

WRONGS   TO    INCORPOREAL    PROPERTY. 

490.  Incorporeal  hereditaments 304 

491.  Other  incorporeal  rights 304 

492.  Statutory  provisions 305 

493.  Patents 305 

494.  Copyrights 306 

495.  Rights  independent  of  statutes 307 

496.  Private  letters 307 

497.  Trade-marks  and  trade  names 307 

CHAPTER  XXXVlil. 

WRONGS   TO    PERSONAL    PROPERTY. 

498.  Kinds  of  injuries 309 

499.  Trespass  by  force 309 

500.  Possession 310 

501.  The  force 310 


xxji  TABLE  OF  CONTENTS. 

Section.  Page. 

502.  Conversion 310 

503.  Conversion  by  persons  rightfully  in  possession 311 

504.  Demand  for  possession 312 

505.  Conversion  by  tenant  in  common 312 

506.  Legal  process 313 

507.  Remedies 313 

CHAPTER  XXXIX. 

WRONGS   TO   REAL   PROPERTY. 

508.  Ownership 315 

509.  Dispossession  315 

510.  Unlawful  detention 316 

511.  Remedies  316 

512.  Injuries  to  land  without  dispossession 317 

513.  Waste 317 

514.  Kinds  of  waste 317 

515.  Remedies 318 

516.  Nuisance  affecting  land 318 

517.  Remedies 318 

518.  Trespass  upon  land 318 

519.  The  boundary  line 319 

520.  Who  may  be  a  trespasser 319 

521.  Lawful  authority 320 

522.  License  impliedly  given  by  the  owner 320 

523.  Express  license  by  the  owner 320 

524.  Effect  by  statute  of  frauds 321 

525.  License  by  law 321 

526.  Legal  process 322 

527.  Condemnation  proceedings 322 

528.  Effect  of  exceeding  the  license 323 

CHAPTER  XL. 

COURTS    IN    GENERAL. 

529.  Courts  and  their  jurisdiction 324 

530.  Jurisdiction  denned 324 

531.  Federal  courts , 325 

532.  The  senate  as  a  court 326 

533.  Judicial  circuits  and  districts 326 

534.  Judicial  power  of  the  United  States  .326 

535.  Exclusive  jurisdiction  of  federal  courts 327 


Section. 
536. 
537. 
538. 
539. 
540. 
541. 
542. 
543. 
544. 

545. 
646-547. 


548. 
549. 
550. 
551. 
552. 
553. 
554. 
555. 
556. 
557. 
558. 
559. 
560. 
561. 
562. 
563. 
564. 
565. 
566. 
567. 
568. 
569. 
570. 
571. 
572. 
573. 
574. 


TABLE  OF  CONTEXTS.  xx[[[ 

Page. 

Concurrent  jurisdiction  of  federal  and  state  courts..  327 

Jurisdiction  of  the  supreme  court 327 

Jurisdiction  of  the  circuit  courts  of  appeals 330 

Jurisdiction  of  the  circuit  courts 330 

Jurisdiction  of  the  district  courts 332 

Jurisdiction  of  the  court  of  claims 334 

Jurisdiction  of  the  court  of  private  land  claims 335 

United  States  commissioners 335 

Courts  of  the  territories  and  of  the  District  of  Co- 
lumbia    335 

State  courts 336 

Jurisdiction  of  state  courts 336 

CHAPTER  XLI. 

CIVIL   PROCEDURE. 

Civil  actions — Courts  and  their  officers 338 

Actions,  how  commenced 339 

Process 339 

How  served  and  returned 340 

Matters  of  defense 340 

Objections  to  jurisdiction  341 

Answers  or  pleas  in  abatement   341 

Issues  of  fact  and  issues  of  law 342 

The  jury 342 

Trials 343 

Evidence 343 

Functions  of  court  and  jury 345 

Presumptions  and  judicial  notice 345 

Written  and  oral  evidence 345 

Attendance  of  witnesses 346 

Competency  of  witnesses 34;> 

Hearsay  evidence 347 

Exceptions  to  the  rule  excluding  hearsay  evidence  347 

Examination  of  witnesses 348 

Burden  of  proof 349 

Arguments  and  instructions 349 

Verdicts 349 

Motions  for  new  trial 350 

Motions  in  arrest  of  judgment 351 

Forms  of  judgment 351 

Appeals  and  writs  of  error 352 

Execution 352 


xxiv  TABLE  OF  CONTENTS. 

CHAPTER  XLII. 

equity  and  proceedings  in  equity. 

Section.  Page. 

575-576.     Equity  jurisdiction 354 

577.  Injunctions— Prohibitory  and  mandatory 355 

578.  General  scope  of  equity  jurisdiction 355 

579.  Administering  full  relief 356 

580.  Suits  in  equity— Pleadings 357 

581.  Evidence  on  hearing 358 

CHAPTER  XLIII. 

ADMIRALTY  law  and  procedure. 

582.  Origin  and  history 359 

583.  Admiralty  jurisdiction 360 

584.  Admiralty  procedure  361 

CHAPTER  XLIV. 

extraordinary  remedies  and  special  proceedings. 

585.  Mandamus 363 

586.  Nature  of  the  action 363 

587.  Quo  warranto 364 

588.  How  obtained 365 

589.  Prohibition 365. 

590.  Habeas  corpus 365 

591.  What  application  must  show — Return 366 

592.  When  legality   of  restraint  will  not  be  inquired 

into 366 

593.  Contempt 367 

594.  Direct  or  constructive  contempt 368 

595.  Attachment 368 

596.  How  writ  served 369 

597.  Garnishment 369 

598.  Capias 370 

599.  Arbitration 370 

600.  Accord  and  satisfaction 371 

601.  Partition 371 

602.  Certiorari 373 


TABLE  OF  CONTENTS.  xxv 

CHAPTER  XLV. 

criminal  law. 

Section.  Pace. 

603.    Crimes  in  the  United  States 374 

004.     Capacity  to  commit  crime 374 

605.  Criminal  statutes— How  construed 375 

606.  Infamous  crimes 375 

607.  Crimes  classified 375 

608.  Compounding 375 

609.  Attempts 375 

610.  Aiding,  counseling,  etc 376 

611.  Unlawful  intent  and  overt  act 376 

612.  Criminal  carelessness 376 

613.  Ignorance  or  mistake  of  fact 377 

614.  Ignorance  of  law 377 

615.  Self-defense 377 

616.  Offenses  committed  by  wife 377 

617.  Principal's  liability  for  offense  of  agent 378 

618.  Principal  and  accessory 378 

619.  Drunkenness 378 

620.  Insanity 379 

621.  Punishment 379 

622.  Jurisdiction  of  crimes 380 

623.  Territorial  jurisdiction 380 

624.  Jurisdiction  over  sovereigns,  ambassadors,  etc 381 

CHAPTER  XLVI. 

CRIMINAL   OFFENSES. 

625.  Abortion 383 

626.  Adultery 383 

627.  Abduction  and  kidnaping 384 

628.  Affray 384 

629.  Arson 384 

630.  Assault :;s:> 

631.  Assault  and  battery 385 

632.  Assault  with  intent 386 

633.  Justification  for  assault 386 

634.  Barratry 387 

635.  Sodomy 387 

636.  Bigamy  or  polygamy ;vs 

637.  Briberv 388 


Xxvi  TABLE  OF  CONTENTS. 

Section.  Page. 

638.  Burglary 389 

639.  Cheating 390 

640.  Conspiracy 390 

641.  The  agreement 391 

642.  Dueling 391 

643.  Embezzlement 391 

644.  Extortion  392 

645.  False  imprisonment 392 

646.  Forgery 393 

647.  Fornication 393 

648.  Homicide 393 

649.  Voluntary  manslaughter 394 

650.  Involuntary  manslaughter 394 

651.  Justifiable  homicide 395 

652.  Malice 396 

653.  Incest 396 

654-656.     Larceny 397 

657.  Libel 397 

658.  Malicious  trespass  or  mischief 398 

659.  Mayhem 398 

660.  Nuisance 398 

661.  Perjury 399 

662.  Piracy 400 

663.  Rape 400 

664.  Riot 400 

665.  Robbery 401 

666.  Seduction 402 

667.  Treason  and  misprision  of  treason 402 

CHAPTER  XLVII. 

CRIMINAL    PROCEDURE. 

668.  Arrest : 404 

669.  Warrant  for  arrest 404 

670.  Validity  of  warrant 405 

671.  Arrest  by  officer  without  warrant 405 

672.  Arrest  by  private  person 406 

673.  Arrest  upon  hue  and  cry 406 

674.  Service  of  warrant 406 

675.  Extradition 407 

676.  Examination,  bail,  etc 408 

677.  Right  to  speedy  trial 409 


TABLE  OF  CONTENTS.  xxvii 

Section.  Pace. 

678.  Right  to  have  counsel 409 

679.  Change  of  venue 410 

680.  Continuance  410 

681.  Indictment— Information  411 

682.  Pleas  to  indictment 412 

683.  Arraignment  412 

684.  Jury  impaneling 413 

685.  Opening  statements  of  counsel 413 

686.  Examination  of  witnesses 414 

687.  Rules  of  evidence 414 

688.  Special  rules  in  criminal  cases 415 

689.  Arguments  of  counsel 416 

690.  Conduct  of  jury— Verdict 417 

691.  Motion  for  new  trial — Arrest  of  judgment — Execu- 

tion   417 


ELEMENTARY  LAW. 


CHAPTER  I. 


LAWS    IN    GENERAL. 


§  1.  Necessity  for  law. — Laws,  in  their  most  gen- 
eral signification,  are  the  necessary  relations  of  things. 
In  this  sense  all  beings  have  their  laws,  the  Deity 
has  his  laws,  the  material  world  has  its  laws,  the 
beasts  have  their  laws,  man  has  his  laws.  Or  as 
Plutarch  expresses  it,  law  is  queen  of  gods  and  men. 
Human  laws  are  the  conditions  under  which  men, 
naturally  independent,  unite  themselves  in  society. 
The  suspension  of  law  in  the  material  universe 
would  result  inchaos;  to  suspend  the  operations  of 
law  in  society  would  result  in  anarchy.  The  ancient 
Persians,  to  impress  upon  the  people  the  necessity  for 
laws,  suspended  all  laws  for  a  period  of  five  days 
after  the  death  of  a  sovereign.  Of  all  men  the  law- 
yer should  be  foremost  in  maintaining  respect  for 
existing  laws. 

§  2.  Human  laws. — We  have  to  deal  here  alone 
with  the  laws  which  men  impose  upon  themselves. 
Discarding  old  theories,  such  as  the  divine  right  of 
kings,  civilized  peoples  recognize  the  fact  that  sover- 
eignty, ultimately  and  of  right,  rests  in  the  governed. 
Each  individual  in  society  sacrifices  part  of  his  lib- 

(1) 


2  ELEMENTARY  LAW.  §  3 

erty  to  save  the  rest,  and  the  sum  of  these  sacrifices 
constitutes  the  sovereignty  of  the  nation,  whether  the 
depository  be  king  or  representative. 

§  3.  Laws  in  the  United  States. — In  the  United 
States  the  sovereignty  is  lodged  in  different  deposito- 
ries, and  the  limit  to  the  powers  of  each  is  to  be 
determined  by  reference  to  the  constitutions  of  the 
nation  and  the  states.  By  these  instruments  the  sov- 
ereign people  have  delegated  certain  portions  of  the 
sovereignty  to  their  agents,  the  legislature,  the  judi- 
ciary and  the  executive.  Within  the  limits  prescribed 
by  these  constitutions,  the  agents  of  the  people  exer- 
cise their  functions;  beyond  those  limits  they  have 
no  power.  In  England  the  sovereignty  of  the  people 
is  lodged  in  fact  in  Parliament,  which  is  said  to  be, 
in  the  matter  of  making  and  executing  laws,  omnipo- 
tent. The  English  courts  have  a  duty  to  perform  in 
interpreting  statutes,  but  they  have  no  power,  as  the 
courts  of  the  United  States  have,  to  declare  an  act  of 
the  legislature  inoperative  and  void  because  it  in- 
fracts some  clause  of  the  constitution.  This  power  of 
our  courts  startles  some  foreign  jurists,  who  regard  it 
as  a  dangerous  anomaly  in  government.  Experience 
has  taught  us  that  the  security  of  person  and  prop- 
erty, and  the  permanence  of  our  institutions,  rest 
largely  on  this  power. 

§  4.  Laws  and  morals. — We  have  been  speaking 
of  what  is  termed  municipal  law,  which  Blackstone 
has  defined  to  be  a  rule  of  civil  conduct  prescribed 
by  the  supreme  power  of  the  state,  command- 
ing what  is  right  and  prohibiting  what  is  wrong. 
Those  things  which  we  possess  and  enjoy  under  the 
protection  of  the  law  are  our  rights.    Wrongs  are  those 


§  5  LAWS  IN  GENERAL.  3 

things  which  are  done  in  violation  of  the  rules  of  civil 
conduct  prescribed  by  the  supreme  power  of  the  state. 
Of  moral  right  and  obligation,  of  moral  duty  and 
moral  wrong,  this  is  not  the  place  to  speak.  Munic- 
ipal law  deals  with  acts,  morality  deals  with  motive-. 
Courts  of  law  are  not  always  courts  of  conscience. 
As  Professor  Amos  says:  "A  man  may  be  a  bad  hus- 
band, a  bad  father,  a  bad  guardian,  without  violating 
a  law.  He  may  bean  extortionate  landlord,  a  waste- 
ful tenant,  a  hard  dealer,  an  unreliable  tradesman, 
and  law  can  not  touch  him.  lie  may  be  a  rascally 
politician,  a  demagogue  and  indolent  aristocrat,  and 
yet  satisfy  to  the  utmost  the  claims  of  the  law."  So 
law,  as  we  use  the  term  in  this  treatise,  is  "a  body  of 
commands  addressed  to  individual  members  of  the 
human  race  forming  the  component  elements  of  a 
state." 

§  5.  A  right  resting  upon  municipal  or  civil  law 
can  be  enforced  or  vindicated  by  a  court,  and  such 
a  right  implies  a  perfect  obligation  to  do  or  forbear. 
A  right  resting  upon  moral  or  social  laws  may  be  valu- 
able and  its  transgression  may  cause  pain , suffering  and 
discomfort,  but  it  can  not  be  enforced  or  vindicated 
by  a  court  or  by  any  positive  sanction.  It  is  the 
province  of  courts  and  lawyers  to  deal  with  rights  of 
perfect  obligation  alone. 

§  6.  Municipal  Law.  —  The  law,  and  herein  we 
speak  only  of  municipal  law,  prescribes  certain  rules 
of  civil  conduct.  These  rules  are  (1)  for  the  pro- 
tection of  our  persons,  (2)  for  the  protection  of  oui 
property,  (3)  for  the  protection  of  our  reputation. 
The  value  of  these  rules  consists  in  the  fact  that  they 
emanate  from  and  are  enforced  by  the  whole  people, 


ELEMENTARY  LAW. 


§7 


acting  through  their  legislatures,  their  courts  and 
their  executive  officers.  The  entire  physical  power 
of  a  nation  is  pledged  to  their  enforcement. 

§  7.  The  Law-making  Power.  —  These  rules  of 
civil  conduct  are  prescribed  by  the  supreme  power  of 
the  state.  This  supreme  power  is  exercised  in  a 
despotism  by  a  single  ruler,  such  as  the  Czar.  In  a 
constitutional  monarchy  such  as  England,  Germany 
and  Italy,  tins  power  is  lodged  in  the  ruling  sover- 
eign and  the  legislature.  In  a  republic,  such  as 
the  United  States,  this  power  is  subdivided.  The 
supreme  power  of  legislation  is  lodged  in  the  legis- 
lative body  and  the  executive,  who  may  approve  or 
veto  a  bill  passed  by  the  legislature.  The  supreme 
power  of  declaring  what  a  legislative  enactment 
means,  in  other  words  the  power  of  interpretation, 
is  lodged  in  the  supreme  court.  The  supreme  power 
of  enforcing  the  law  rests  with  the  executive.  The 
value  and  permanence  of  our  institutions  depend 
upon  the  preservation  to  each  of  the  departments — 
the  legislative,  the  executive  and  the  judiciary — its 
separate  and  appropriate  functions. 

§  8.  Good  citizenship  requires  implicit  obedience 
to  the  laws  enacted  by  the  legislature  within  the 
scope  of  its  constitutional  power,  to  the  orders  and 
decrees  of  the  judiciary  in  all  matters  of  which  they 
have  jurisdiction,  to  the  commands  of  the  executive 
in  preserving  the  peace  and  enforcing  the  laws. 

§9.  The  Supreme  Court  of  the  United  States.— 
Professor  Maine  says  the  Supreme  Court  of  the  United 
States  is  the  unique  and  important  contribution  of 
America  to  the  science  of  government.  He  speaks, 
of  course,  of  its  transcendent  power  to  annul  an  act 


§  (j  LAWS  IN  GENERAL. 

of  the  legislature  approved  by  the  executive,  when, 
in  the  opinion  of  the  court,  the  act  in  question  is 
contrary  to  the  provisions  of  the  constitution.  This 
power  was  disputed  soon  after  the  adoption  of  the 
constitution.  It  has  never  been  denied  since  Chief 
Justice  Marshall  uttered  those  memorable  words  in 
his  opinion  in  the  case  of  Marbury  v. Madison, lCranch 
177.  lie  says:  "It  is  emphatically  the  province  and 
duty  of  the  judicial  department  to  say  what  the  law- 
is.  Those  who  apply  the  rule  to  particular  cases  must, 
of  necessity,  expound  and  interpret  that  rule.  If 
two  laws  conflict  with  each  other  the  court  must  decide 
on  the  operation  of  each.  So,  if  a  law  be  in  opposition 
to  the  constitution,  if  both  the  law  and  the  constitu- 
tion apply  to  a  particular  case,  so  that  the  court  must 
either  decide  that  case  conformably  to  the  law,  disre- 
garding the  constitution,  or  conformably  to  the  con- 
stitution, disregarding  the  law,  the  court  must  de- 
termine which  of  these  conflicting  rules  governs  the 
case.  This  is  the  very  essence  of  judicial  duty.  If 
then  the  courts  are  to  regard  the  constitution,  and 
the  constitution  is  superior  to  any  ordinary  act  of  the 
legislature,  the  consitution,  and  not  such  ordinary 
act,  must  govern  the  case  to  which  they  both  apply. 
Those,  then,  who  controvert  the  principle  that  the 
constitution  is  to  be  considered  in  court  as  a  para- 
mount law  are  reduced  to  the  necessity  of  maintain- 
ing that  courts  must  close  their  eyes  to  the  constitu- 
tion and  see  only  the  law.  This  doctrine  would  sub- 
vert the  very  foundation  of  all  written  constitutions. 
It  would  declare  that  an  act  which,  according  to  the 
theory  of  our  government,  is  entirely  void  is  yet,  in 
practice,  completely  obligatory.      It  would    declare 


6  ELEMENTARY  LAW.  §  10 

that  if  the  legislature  shall  do  what  is  expressly  for- 
bidden, such  act,  notwithstanding  the  express  prohi- 
bition, is,  in  reality,  effectual.  It  would  be  giving  to 
the  legislature  a  practical  and  real  omnipotence  with 
the  same  breath  which  professes  to  restrict  their  pow- 
ers within  narrow  limits.  It  is  prescribing  limits  and 
declaring  that  those  limits  may  be  passed  at  pleas- 
ure." 

§  10.  Kinds  of  laws  in  the  United  States. — As  in 
Rome,  as  in  England,  and  the  United  States,  law  is 
divided  into  written  and  unwritten.  Justinian, 
speaking  of  Roman  law,  says:  "Our  law  is  writ- 
ten and  unwritten,  just  as  among  the  Greeks  some 
of  their  laws  were  written  and  others  not  written. 
The  written  part  consists  of  laws  plebiscita,  sena- 
tus-consulta,  enactments  of  emperors,  edicts  of  mag- 
istrates, and  answers  of  jurisprudents."  Black- 
stone  says:  "The  municipal  law  of  England  or  the 
rule  of  civil  conduct  prescribed  to  the  inhabitants  of 
this  kingdom  may  with  sufficient  propriety  be  di- 
vided into  two  kinds  :  The  lex  non  scripta,  the  un- 
written or  common  law,  and  the  lex  scripta,  the  writ- 
ten or  statute  law." 

§  11.  Owing  to  the  peculiar  form  of  our  govern- 
ment, our  written  laws  are  of  different  dignity  and 
authority.  Our  national  constitution  declares  that 
"the  constitution,  and  the  laws  of  the  United 
States  which  shall  be  made  in  pursuance  thereof, 
and  all  treaties  made  or  which  shall  be  made 
under  the  authority  of  the  United  States  shall 
be  the  supreme  law  of  the  land,  and  the  judges  in 
every  state  shall  be  bound  thereby,  anything  in 
the  constitution  or  laws  of  any  state  to  the  contrary 


§12 


LAWS  IN  GENERAL. 


notwithstanding."  Next  in  dignity  and  authority 
are  the  written  constitutions  of  the  several  states 
and  the  acts  of  the  legislatures  of  the  states  respect- 
ively; to  these  may  be  added  the  ordinances  of  cities 

and  towns.  These  constitutions,  treaties,  act-  of 
congress  and  acts  of  the  legislature,  and  ordinances, 
constitute  the  written  laws  which  govern  the  people 
of  the  United  States.  These  written  laws  emanate  from 
the  sovereign  will  of  the  people  and  are  self-imposi  1. 
§  12.  The  unwritten  law  in  the  United  States  may 
be  defined  in  the  words  of  Justinian  as  being  "that 
which  usage  has  established  ;  for  ancient  customs, 
being  sanctioned  by  those  who  adopt  them,  are  like 
laws."  It  is  customary  law,  and  is  as  obligatory  as 
any  other  law.  In  a  pending  controversy  the  courts 
announce  the  rule  of  civil  conduct,  i.  e.,  the  law 
which  fixes  the  rights  and  liabilities  of  the  parties 
before  it,  whether  that  rule  is  found  in  the  written 
or  the  unwritten  law.  This  unwritten  or  common  law 
is  different  in  different  states.  The  United  States  as 
a  nation  has  no  common  or  unwritten  law.  The 
national  or  federal  courts  administer  the  common 
law  as  they  find  it  to  exist  in  the  states  respectively. 
The  common  law  of  Louisiana,  for  instance,  is  based 
upon  the  principles  of  the  civil  law  which  came  to 
Louisiana  from  France.  The  common  law  of  most 
of  the  other  states  finds  its  source  in  the  common 
law  as  it  was  established  and  administered  in  Eng- 
land and   her  colonies  at  the  time  of  the  separation. 


CHAPTER  II. 

INTERNATIONAL  LAW  AND  CITIZENSHIP. 

§  13.  International  law. — This  is  composed  of  the 
rules  which  fix  the  rights  and  duties  of  civilized  na- 
tions in  their  intercourse  with  one  another.  Pro- 
fessor Maine  defines  it  as  the  law  of  negotiation  and 
diplomacy .  The  horrors  of  war  on  land  and  sea  made 
international  law  a  necessity.  There  are,  however, 
no  fixed  sanctions  or  penalties  to  punish  violations  or 
to  enforce  obedience  to  this  law;  there  is  no  tribunal  to 
hear  and  determine  questions  touching  breaches  of  the 
law.  If  two  nations  have  a  controversy,  it  can  be 
settled  in  one  of  three  ways.  First,  by  negotiation 
between  the  parties  concerned.  Second,  by  arbitra- 
tion agreed  upon  by  the  parties.  Third,  by  war. 
The  Amphyctionic  Council  was  established  for  a  law 
of  nations  for  the  Greek  states,  but  it  failed.  Aris- 
totle pleaded  for  the  humane  treatment  of  prisoners 
of  war.  As  late  as  the  Middle  Ages  the  usages  of 
war  were  barbarous.  The  church  exercised  her  in- 
fluence to  soften  its  rigors.  Her  efforts  were  supple- 
mented by  the  laws  of  chivalry,  and  Inter,  nations 
by  treaties  bound  themselves  to  certain  rules  for  the 
conduct  of  war,  and  these  rules  by  constant  usage 
have  come  to  be  settled  law  among  all  civilized  peo- 
ples. The  scope  of  international  law  includes  also 
the  customs  and  usages  which  fix  the  rights  of  neu- 

(3) 


§14 


INTERNATIONAL  LAW  AND  CITIZENSHIP. 


trals,  the  navigation  of  the  high  seas,  the  extent  of 

the  jurisdiction  of  nations  over  the  seas  at  their  coast 
lines,  the  punishment  of  piracy,  treatment  of  am- 
bassadors and  consuls,  passports,  in  fact  of  all  mat- 
ters growing  out  of  and  related  to  the  intercourse  of 
the  subjects  of  nations  with  each  other. 

§  14.  What  is  called  the  conventional  law  of  na- 
tions is  composed  of  those  stipulations  and  rules 
which  have  been  incorporated  in  treaties,  a  law 
which  is  only  binding  upon  the  parties  to  the  treaty. 
To  promote  harmony  and  to  facilitate  the  settlement  of 
controversies  between  nations,  and  the  subjects  of  dif- 
ferent nations,  it  is  customary  for  nations  to  have  ac- 
credited representatives  at  the  seat  of  government  of 
other  nations.  These  representatives,  whether  called 
ministers  or  ambassadors,  are  not  subject  to  the 
jurisdiction  of  the  courts  of  the  country  to  which 
they  are  sent,  and  the  same  rule  extends  to  the 
members  of  their  families  and  households. 

§  15.  Neutrality. — When  two  nations  are  at  war, 
other  nations  should  observe  the  duties  of  neutrality 
towards  the  belligerents.  To  enforce  these  duties 
most  nations  enact  neutrality  laws  for  the  purpose  of 
punishing  such  of  their  subjects  as  violate  their 
duties.  A  neutral  must  abstain  from  giving  aid  to 
the  belligerents. 

§  10.  When  war  exists. — Each  belligerent  has  the 
right  to  seize  and  possess  itself  of  all  property  with- 
in its  borders  belonging  to  the  enemy  or  the  enemy's 
subjects.  Exceptions  are  made  in  favor  of  debts 
owing  to  foreign  creditors  and  to  ships  in  porl 
which  have  not  had  sufficient  time  to  leave  alter 
hostilities   began.     Where   and    to   what    extent  the- 


IQ  ELEMENTARY  LAW.  §  17 

property  of  an  enemy  may  be  seized  and  confiscated 
is  in  this  country  a  political  question  which  must  be 
determined  by  congress. 

§17.  Interstate  law. — Akin  to  international  law 
is  what  may  be  called  interstate  law  in  this  country. 
In  a  large  measure  the  rights  of  citizens  of  one 
state  to  travel  in,  to  carry  on  business,  to  make 
contracts,  and  to  acquire  and  enjoy  property  in  the 
other  states  are  secured  by  the  constitution  of  the 
United  States ;  but  in  many  things  their  rights  are 
restricted  by  state  laws.  Corporations  organized  under 
the  laws  of  one  state  doing  business  in  another, 
must  submit  to  and  perform  such  conditions  as  may 
be  imposed  upon  them  by  the  latter  state.  So,  con- 
tracts made  in  one  state  will  be  enforced  in  another 
state  only  according  to  the  methods  of  procedure  of 
the  latter  state.  As  when  the  laws  of  the  state  in 
which  a  suit  is  brought  to  collect  a  debt  contracted 
in  another  has  a  statute  of  limitations  which  bars  a 
recovery  sooner  than  it  would  be  barred  in  the  state 
where  the  contract  was  made,  the  shorter  limit  will 
be  applied. 

§  18.  While  the  federal  courts  take  judicial  notice 
of  the  laws  of  the  United  States,  and  of  all  the  laws 
of  all  the  states,  the  state  courts  only  take  judicial 
notice  of  the  laws  of  the  United  States  and  of  their 
own  states.  Ordinarily,  the  laws  of  one  state  are 
limited  in  their  operations  to  the  geographical 
boundaries  of  the  state.  When,  however,  a  contract 
is  made  in  one  state,  the  law  of  that  state  must  be 
resorted  to  in  measuring  the  rights  of  the  parties  to 
it.  The  law  of  the  place  where  the  contract  is  made 
determines  their  rights,  and    the  law   of    the  place 


§  19      INTERNATIONAL  LAW  AND  CITIZENSHIP.        H 

where  redress  is  sought  in  the  courts  determines  the 
manner  of  the  remedy. 

§  19.  Where  a  man  having  a  domicil  in  one  state 
dies  intestate,  leaving  property  in  two  or  moresti 
it  is  a  rule  of  law  that  the  personal  property  shall  be 
distributed  amongst  his  heirs  according  to  the  law  of 
the  place  of  his  domicil,  and  that  the  real  estate 
shall  descend  to  his  heirs  according  to  the  laws  of  the 
place  where  it  lies. 

§  20.  Citizenship. — Citizenship  is  the  state  of  be- 
ing vested  with  the  rights  and  privileges  of  a  citizen. 
In  this  country  there  are  two  kinds  of  citizenship  and 
allegiance — one  national  and  the  other  state.  It  is 
for  congress  to  determine  who  shall  enjoy  the  privi- 
leges of  national  citizenship  within  the  limits  pre- 
scribed by  the  constitution,  and  the  laws  of  the  several 
states  fix  the  conditions  under  which  state  citizenship 
is  acquired.  No  state  can  make  or  enforce  a  law 
which  shall  abridge  the  privileges  and  immunities  of 
citizens  of  the  United  States;  nor  can  any  state  de- 
prive any  person  of  life,  liberty  or  property  without 
due  process  of  law,  nor  deny  to  any  person  within  its 
jurisdiction  the  equal  protection  of  its  laws.  This  is 
a  provision  of  the  constitution  of  the  United  States — 
and  any  state  law  to  the  contrary  is  void.  It  is 
further  provided  in  the  constitution  that  the  citizens 
of  each  state  shall  be  entitled  to  all  privileges  and 
immunities  of  citizens  in  the  several  states.  The 
right  of  a  citizen  to  expatriate  himself  and  become  a 
subject  of  another  nation  was  questioned  in  this 
country  until  congress  passed  a  law  recognizing  such 
right. 

§  21.   Citizenship  is  acquired  by  birth  or  by  natural- 


12  ELEMENTARY  LAW.  §  21 

ization.  Congress  has  sole  power  to  establish  uniform 
rules  of  naturalization.  It  is  in  the  power  of  the 
states  to  adopt  citizens  on  easier  terms  than  the  laws 
of  congress  may  impose,  but  they  have  no  power  to 
exclude  from  citizenship  those  who  have  been  natural- 
ized according  to  the  laws  of  congress.  By  these 
laws  the  applicant  must  make  oath  before  the  proper 
officer,  at  least  two  years  before  his  admission,  that  it 
is  his  intention  to  become  a  citizen,  and  renounce  his 
allegiance  to  his  own  sovereign.  At  his  final  ad- 
mission to  citizenship  he  shall  make  oath  that  he 
will  support  the  constitution  of  the  United  States 
and  renounce  all  allegiance  to  any  foreign  power, 
especially  his  own  sovereign.  He  must  prove  by  at 
least  two  citizens  that  he  has  resided  in  the  United 
States  five  years  and  within  the  state  or  territory 
where  he  is  located,  one  year;  that  he  has  been  a 
moral  person  and  is  attached  to  and  well  disposed 
toward  the  principles  of  this  government.  He  must 
also  renounce  all  titles  to  nobility,  if  he  have  any.  A 
minor  alien  (not  a  Chinese),  who  shall  have  resided 
within  the  United  States  three  years  next  preceding 
his  majority,  and  so  resides  at  the  time  of  making 
his  application,  may,  after  reaching  his  majority, 
and  having  resided  in  the  United  States  five  years, 
including  the  three  years  during  his  minority,  be 
given  citizenship  without  a  preliminary  declaration. 
An  alien  who  is  over  twenty-one  years  of  age,  who 
has  enlisted  and  served  in  the  armies  of  the  United 
States  as  a  regular  or  volunteer,  and  has  been  honor- 
ably discharged,  can,  if  he  has  resided  in  the  United 
States  one  year,  be  admitted  to  citizenship  without  a 
preliminary    declaration.     Children    of    naturalized 


§  22      INTERNATIONAL  LAW  AND  CITIZENSHIP.        13 

parents,  who  were  under  age  when  the  parents  were 
naturalized,  shall,  if  residing  in  the  United  States, 
be  considered  citizens.  By  the  laws  of  some  states 
aliens  who  have  declared  their  intention  to  become 
citizens  of  the  United  States  and  have  resided  in  the 
United  States  one  year  are  allowed  to  vote  in  the  state 
where  they  reside. 

§  22.  Aliens. — The  rights  of  aliens  to  acquire  and 
hold  property  by  purchase  or  descent  are  fixed  and 
regulated  by  the  laws  of  the  several  states,  and  in 
most,  if  not  all  of  them,  aliens  may  take  and  hold 
property  by  devise,  deseent,  or  purchase  in  the  same 
manner  as  citizens.  In  some  states  this  right  is 
limited  to  such  right  as  citizens  of  the  United  States 
may  have  to  take  and  hold  property  within  the 
country  of  such  aliens. 


CHAPTER   III. 

WRITTEN  LAWS. 

§  23.  Constitutions. — We  come  now  to  inquire  as 
to  the  manner  in  which  the  supreme  power  of  the 
state  prescribes  the  rules  of  civil  conduct,  as  they 
are  embodied  in  the  written  law.  The  constitution 
of  the  nation,  or  of  the  state,  is  the  direct  and  im- 
perative expression  of  the  will  of  the  people.  Legis- 
latures and  courts  are  under  the  constitution,  and 
are  created  by  it  or  by  its  authority.  This  para- 
mount written  law,  the  constitution  of  the  United 
States,  can  only  be  amended  by  a  vote  of  three- 
fourths  of  all  the  states  of  the  Union.  The  consti- 
tutions  of  the  several  states  may  be  amended  in  such 
manner  as  is  provided  in  the  constitutions  them- 
selves. 

§  24.  Statutes. — The  powers  of  congress  are  fixed 
by  the  constitution,  as  it  is  interpreted  by  the 
supreme  court.  If  the  power  to  legislate  on  a  sub- 
ject is  conceded  to  congress,  the  supreme  court  will 
not  inquire  into  the  policy  of  a  law,  or  the  motives, 
which  led  to  its  enactment,  or  the  manner  in  which 
it  was  enacted.  It  is  only  when  the  law  violates  a 
provision  of  the  constitution  that  the  court  by  its 
judgment  pronounces  it  null  and  void.  Courts  of 
justice  should  bring  every  law  to  the  test  of  the  con- 

(14) 


§  25  WRITTEN  LAWS.  15 

stitution,  first  of  the  United  States  and  then  of  their 

own  state,  as  the   paramount  and  supreme  law,  to 
which   every  inferior  power  must  conform.     As  the 
laws  enacted  by  congress  and  by  the  state  legislature  \ 
must  be  brought  to   the  test  of  the  constitution,  so  t 
the   ordinances   of   towns   and   cities,  which  arc  the 
creatures  of  legislative  power,   must  be  brought  to 
the  test  of  the  laws  or  charters   by  virtue   of   which  • 
they  exist.     Laws  enacted  by  congress  are  in  fore 
from  and  after  their   passage,  unless  the  time  of  the 
taking  effect  of  the   law  is  postponed  to  a  later  date 
by  the  law  itself.     It  would  be  manifestly  unjust  to 
enact  laws  without  providing  some  means  of  publish- 
ing them,  so  in  civilized   nations  legislative  enact- 
ments which   have  the   force  of  laws  are  published 
by  authority.     In  some  states  of  the  Union,  general 
laws  are  not  in  force  until  they  are  printed  and  dis- 
tributed to  every  county  in  the  state.     In  Indiana  > 
if  in  the  body  of  the  act  it  is  declared  that  an  emer- 
gency exists  for  the  immediate  taking  effect  of  a  law, 
it  is  in  force  from  and  after  its  passage. 

§  25.  Validity  of  statutes— it  is  a  rule  of  decision 
which  the  courts  recognize,  that  whenever  the  con- 
stitutionality of  a  statute  is  doubtful,  it  will  be  sus-  3 
tained.  No  statute  by  any  fiction  or  relation  shall 
have  any  effect  before  it  be  actually  passed.  And 
a  statute  is  not  passed  so  as  to  have  effect  until  the 
legislature  has  given  the  required  number  of  votes 
in  its  favor.  When  the  fact  of  its  receiving  this 
many  votes  is  certified  to  the  governor  or  president, 
by  the  presiding  officers  of  the  two  houses,  and  the 
executive  signature  and  approval  are  affixed  thereto, 
it  is  a  law  and  not  before,  unless  in  exceptional  cas 


16  ELEMENTARY  LAW.  §  26 

where  the  legislature  may  re-enact  a  law  by  passing 
it  over  the  veto  of  the  governor  or  president,  as 
provided  in  the  constitution. 

§  26.  Retroactive  statutes. — It  is  a  maxim  that  a 
legislative  enactment  ought  to  be  prospective  and 
not  retroactive.  A  retroactive  statute  would  partake 
in  its  character  of  the  mischief  of  an  ex  post  facto 
law,  as  to  all  cases  of  crimes  and  penalties;  and  in 
cases  relating  to  contracts  or  property  it  would  mili- 
tate against  every  sound  principle.  A  retrospective 
statute  affecting  and  changing  vested  rights  is  gen- 
erally considered  as  grounded  on  unconstitutional 
principles,  and  consequently  is  void.  Bat  this  doc- 
trine does  not  apply  to  remedial  statutes,  which  may 
be  of  a  retrospective  nature,  provided  they  do  not 
impair  contracts  or  disturb  vested  rights,  and  only 
tend  to  confirm  rights  already  existing,  by  curing 
defects  and  aiding  in  enforcing  existing  obligations. 
Such  statutes  are  held  valid  when  clearly  just  and 
reasonable,  and  conducive  to  the  general  welfare, 
even  though  operating  in  a  degree  upon  existing 
rights;  as  a  statute  to  confirm  marriages  defectively 
celebrated  or  a  sale  of  lands  defectively  made  or  ac- 
knowledged. 

§  27.  Public  and  private  statutes. — Statutes  may 
be  public  or  private.  Public  statutes  relate  to  the 
country  or  state  at  large  and  private  statutes  con- 
cern the  particular  interests  of  certain  individuals. 
Public  statutes  bind  everybody,  private  statutes  do 
|  not  bind  strangers  in  interest  by  their  provisions. 
Courts  take  judicial  notice  of  public  statutes,  but  not 
of  private  statutes .  A  party  to  a  suit  basing  a  claim  upon 
a  private  statute  must  plead  it  specially,  but  one  who 


W 


§   28  WRITTEN  LAWS.  17 

bases  his  claim  upon  a  public  statute  need  not  plead 
it  at  all. 

§  28.  Interpretation  of  statutes. — After  a  law  is 
enacted  in  due  form  and  its  constitutionality  is  es- 
tablished or  conceded,  questions  may  arise  as  to  the 
meaning  of  the  law.  Here  the  duty  of  interpreting  ,  ^^ 
the  law  is  devolved  upon  the  courts,  whenever  in  an 
action  before  them  the  parties  to  the  action  insist 
upon  different  interpretations.  Interpretation  is  the 
art  of  finding  out  the  true  sense  of  any  form  of 
words,  that  is,  the  sense  which  their  author  intend- 
ed. And  here  let  us  note  some  of  the  rules  of  inter- 
pretation, /it  is  not  permitted  to  interpret  what  needs  ^ 
no  interpretation.  ;AV here  the  intention  of  the  law-mak- 
ing power  is  plainly  manifest  from  a  reading  of  the 
statute,  that  intention  must  prevail  over  the  literal 
sense  of  the  terms  used.  TThe  intention  of  the 
lawgiver  is  to  be  deduced  from  a  view  of  the  whole 
and  of  every  part  of  a  statute  compared  together, 
just  as  a  contract  or  a  will  is  interpreted  and  the 
meaning  of  the  parties  ascertained  by  considering  every 
part  of  the  instrument  under  consideration.  i^Vhere  the 
words  are  not  explicit,  the  intention  is  to  be  collected 
from  the  context,  from  the  occasion  and  necessity  of 
the  law,  from  the  mischief  felt,  and  the  object  and 
remedy  in  view;  and  the  intention  is  to  be  taken  ac- 
cording to  what  is  consonant  to  reason.  i-The  words 
of  a  statute,  if  of  common  use,  are  to  be  taken  in 
their  plain,  obvious  and  ordinary  sense.  ^If  techni- 
cal words  are  used  they  are  to  be  taken  in  a  technical 
sense,  unless  it  clearly  appears  from  the  context  or 
other  parts  of  the  law  that  the  words  were  intended 
2 


13  ELEMENTARY  LAW.  §  29 

to  be  applied  in  a  different  sense.  If  the  tech- 
nical meaning  of  terms  is  in  doubt  or  disputed, 
the  court  may  call  to  its  aid  those  whose  calling 
has  made  them  acquainted  or  familiar  with  the 
meaning  of  such  words.  *7  Statutes  should  be  inter- 
preted according  to  the  natural  and  obvious  import 
of  the  language  without  resorting  to  subtle  or  forced 
constructions.  tfAll  the  statutes  of  the  same  legisla- 
ture relating  to  the  same  subject  are  to  be  taken  to- 
gether, for  they  are  considered  as  having  one  object 
in  view,  and  as  acting  on  one  system.  •■<.  So,  whenever 
it  is  clear  that  a  power  is  given  by  the  statute,  the 
court  will  construe  it  as  implying  the  right  to  make 
it  effective.  It  is  a  rule  in  some,  but  not  all  of  the 
states,  that  statutes  enacted  in  derogation  of  the  com- 
mon  law  are  to  be  strictly  construed.  Remedial 
statutes  are  to  be  liberally  construed;  while  penal 
statutes  are  to  be  strictly  construed.  Beccaria  says: 
"Penal  laws  should  be  so  plain  that  no  judge  should 
be  tempted  to  interpret  them.  There  is  nothing  more 
dangerous  than  the  axiom,  the  spirit  of  the  law  is 
to  be  considered."  If  the  sovereignty,  the  legisla- 
tive power  has  not  spoken  plainly,  there  is  no  law. 

§  29.  It  is  better  thus  than  to  allow  judicial  legis- 
lation concerning  the  lives  and  liberties  of  the  subject. 
The  disorders  that  may  arise  from  a  rigorous  observ- 
ance of  the  letter  of  the  penal  laws  are  not  to  be 
compared  with  those  produced  by  the  interpretation 
of  them.  Statutes  against  frauds  are  liberally  con- 
strued, and  the  reason  is  that  they  deprive  no  man 
of  his  right.  They  inflict  no  punishment,  they  simply 
prevent  a  wrong-doer  from  taking  or  keeping  what 
he  seeks  or  holds  by  fraud.     The  common  law  gives 


§  30  WRITTEN  LAWS.  19 

place  to  a  statute,  and  an  old  statute  gives  place  to 
a  new  one. 

§30.  Where  the  provisions  of  a  now  statute  are 
repugnant  to  the  provisions  of  an  earlier  statute,  the 
earlier  is  said  to  be  repealed  by  implication,  the  later 
statute  being  the  more  recent  expression  of  legisla- 
tive intention.  Repeals  by  implication  are  not  fa- 
vored. Statutes  limiting  the  powers  of  future  legis- 
latures are  void.  A  legislature  can  not  enact  an 
irrepealable  statute  unless  it  is  in  the  form  of 
a  contract — such  as  a  charter,  under  which  rights  £y 
have  become  vested.  Ordinarily  the  repeal  of  a  re- 
pealing statute  revives  the  statute  which  had  been 
repealed.  Some  states  have  by  law  abolished  this 
rule. 

§  31.  Where  a  literal  construction  would  violate 
{lie  legislative  intention,  it  will  not  be  adhered  to. 
A  saving  clause  or  pi-oviso  repugnant  to  the  body  of 
he  statute  is  void.  Where  a  statute  contains  a  word 
whose  meaning  is  known  to  the  common  law,  that 
meaning  will  be  adopted.  In  construing  a  doubt- 
ful statute,  the  preamble  and  title  may  be  consulted. 
Long-continued  practice  may  affect  the  construction 
of  a  statute,  and  the  contemporaneous  construction  of 
a  statute  is  of  high  authority. 


CHAPTER  IV. 

UNWRITTEN  LAWS. 

§  32.  Common  law. — We  have  now  to  speak  of 
the  unwritten  or  common  law.  The  phrase  common 
law  is  here  used  in  contradistinction  to  statute  law 
and  law  as  contained  in  written  constitutions,  al- 
though it  may  also  be  appropriately  used  in  contra- 
distinction to  the  civil  or  canon  law,  admiralty  and 
maritime  jurisprudence,  and  very  often  to  equity. 
In  the  sense  here  used  it  is  an  unwritten  law,  which 
receives  its  binding  force  from  immemorial  usage 
and  universal  reception  in  distinction  from  written 
or  statute  law.  Its  rules  or  principles  are  to  be 
found  in  the  text-books  written  by  men  learned  in  the 
law,  in  the  records  of  the  courts  and  in  the  reports 
of  judicial  decisions.  As  a  rule  of  civil  conduct  it 
is  of  binding  obligation  upon  all  until  it  is  modi- 
fied or  overruled  by  statute  law. 

§  33.  Sources  of  the  common  Law. — The  origin  or 
source  of  the  common  law  has  been  said  to  be  un- 
discoverable.  It  is  the  sum  of  innumerable  accre- 
tions from  ancient  customs  and  usages  which  began 
among  the  people  of  England,  which  customs  are 
sometimes  designated  as  the  "ancient  Saxon  privi- 
leges," or  the  body  of  laws  framed  by  Alfred  the 
Great  and  re-affirmed  by  Edward  the  Confessor.     In 

(20) 


§  34  UNWRITTEN  LAWS.  21 

making  this  compilation,  Allied  drew  upon  the 
Mercian  laws  existing  in  the  counties  bordering  on 
Wales  and  retaining  old  British  customs;  upon  the 
West  Saxon  of  southern  and  southwestern  counties  of 
England  ;  and  upon  the  Danish  of  the  western  coast, 
where  a  Danish  settlement  had  been  effected.  Some 
affirm,  with  apparent  good  reason,  that  it  was  framed  in 
part  from  the  Old  Testament;  portions  of  it  were 
undoubtedly  taken  from  the  principles  of  the  Roman 
Pandects.  These  were  compiled  by  Roman  lawyers 
by  command  of  Justinian  from  the  writings  and  opin- 
ions of  the  old  Roman  jurists  and  formed  a  part  of  the 
body  of  the  civil  law  of  Rome,  which  has  been  ac- 
cepted as  the  basis  of  mediajval  legislation  and  of  nearly 
all  European  law.  The  spirit  of  these  laws  found 
its  way  into  England  through  the  clergy,  who  were 
the  only  learned  class  of  that  period.  Some  cen- 
turies later  the  laws  themselves  became  embodied  in 
the  common  law  of  England  in  a  more  positive  and 
extensive  form. 

§  34.  Growth  of  the  common  law. — At  the  time 
of  the  Norman  conquest  the  invaders  found  the 
English  people  living  under  a  code  of  laws  which 
was  compiled  by  Edward  the  Confessor,  upon  the 
basis  of  the  code  of  Alfred,  which  has  already  been 
mentioned.  The  renewal  by  Magna  Charta  of  the 
"ancient  Saxon  privileges"  was  the  re-enactment  of 
a  part  of  the  code  of  Edward.  Although  the  com- 
mon law  is  an  unwritten  law,  its  rules  and  principles 
have  been  handed  down  from  generation  to  genera- 
tion, and  sometimes  have  almost  approached  in  ex- 
actitude the  complete  and  precise  form  of  statute 
law.     An  illustration  of   the  adaptability  of  the  com- 


22  ELEMENTARY  LAWS.  §  35 

mon  law  to  the  wants  of  society  is  found  in  the  man- 
ner in  which  the  rules  of  the  law  merchant  were  in- 
corporated into  or  were  assimilated  by  the  common 
law.  During  the  operation  of  the  feudal  system  the 
rules  of  the  common  law  were  inadequate  to  the 
needs  of  the  mercantile  classes.  As  controversies 
came  before  the  courts,  they  were  in  the  habit  of  ap- 
plying to  commercial  contracts  the  rules  which  had 
been  adopted  among  merchants  in  their  business 
dealings,  just  as  courts  now  interpret  and  enforce 
the  contracts  of  men  engaged  in  the  various  callings 
of  life,  according  to  the  customs  and  usages  prevail- 
ing in  such  callings.  So  numerous  w7ere  the  rules  of 
the  law  merchant,  and  so  important  had  the  mercan- 
tile classes  become,  that  by  a  statute  enacted  during 
the  reign  of  James  I  these  rules  were  declared  to  be 
a  part  of  the  common  law.  And  substantially  as 
they  were  when  this  statute  was  enacted,  they  have 
come  to  be  a  part  of  the  common  law  of  the  United 
States. 

§  35.  Functions  of  the  courts. — The  unwritten  or 
common  law  constitutes  the  great  bulk  of  the  Eng- 
lish and  American  system  of  law.  Of  this  system 
the  lawyers  and  judges  are  the  visible  artificers. 
"The  state  has,"  as  Prof.  Holland  says,  "  in  gen- 
eral two  and  only  two  articulate  organs  for  law-mak- 
ing purposes — the  legislature  and  the.  tribunals. 
The  first  organ  makes  new  law ;  the  second  attests 
and  confirms  old  law,  though  under  cover  of  doing 
so  it  introduces  many  new  principles."  It  is  the 
function  of  the  legislature  to  innovate,  for  it  is  the 
desire  or  object  of  the  legislator  to  do  away  with 
something  old  or  establish    what  is  new.     On    the 


§  36  UNWRITTEN  LAWS.  23 

other  hand  it  is  the  province  of  the  tribunal  not  to 
innovate,  but  to  declare  and  confirm  what  already  is 
assumed  to  exist.  And  while  courts  may  and  many 
courts  do  seek  to  make  new  rules,  in  so  doing  they 
enter  upon  the  dangerous  ground  of  judicial  legisla- 
tion. Judge-made  law,  or  law  made  by  one  man.  is, 
in  this  country  at  least,  an  abomination.  It  is  a 
usurpation  by  one  branch  of  the  government  upon 
the  powers  of  another.  It  is  the  foulest  injustice  to 
remove  landmarks,  and  to  corrupt  the  law  is  to 
poison  the  very  fountains  of  justice.  Judicial  laws 
are  always  retrospective  and  are  worse  than  retro- 
spective statutes.  xVgainst  retrospective  statutes  there 
is  the  bar  of  constitutional  provisions.  There  is  no 
such  bar  against  the  capricious  legislation  of  a  judge. 
A  judicial  superseding  of  legislative  intent  is  an  act 
of  mere  executive  insubordination.  It  is  dangerous 
and  may  easily  become  the  source  of  the  gravest 
abuse. 

§  30.  Common  law  in  the  United  States.  —  The 
common  law  of  the  states  comprising  the  United 
States  consists  of  the  common  law  of  England 
as  modified  by  English  statutes  previous  to  the 
colonization  of  America,  so  far  as  it  was  adapted  to 
the  altered  conditions  and  circumstances  of  the 
colonies,  and  those  English  statutes  passed  afterwards 
prior  to  the  American  Revolution,  which  were  prac- 
tically accepted  and  adopted  in  America  and  became 
a  part  of  the  common  law.  The  common  law  is 
presumed  to  exist  in  the  colonial  states  and  in  states 
of  which  the  population  was  made  up  from  those 
states,  in  fact  all  the  states  except  Louisiana  have  in 
one  form  or  another  adopted  the  common  law.     The 


24  ELEMENTARY  LAW.  §  37 

United  States  as  a  nation  has  no  law  that  is  not  em- 
bodied in  the  constitution,  treaties  or  laws  enacted  by 
congress,  and  the  common  law  could  be  made  a  part 
of  our  federal  system  only  by  legislative  adoption. 

§  37.  Precedents,  importance  of. — What  is  com- 
mon law  is  declared  by  the  courts,  and  what  the  courts 
have  declared  to  be  the  law  is  found  in  their  records 
and  published  decisions.  When  a  rule  of  law  has 
once  been  declared  it  ought  not  to  be  disturbed  un- 
less by  a  court  of  appeal  or  review,  and  never  by  the 
same  court,  unless  upon  very  urgent  reasons  and 
upon  a  clear  manifestation  of  error;  any  other  prac- 
tice leaves  the  citizen  in  a  perplexing  uncertainty  as  to 
the  law.  A  precedent,  even  where  it  appears  to  be  flatly 
unreasonable  and  unjust,  may  and  should  be  followed 
if  it  has  been  acquiesced  in  for  a  long  period,  or  if 
it  has  become  a  rule  of  property,  so  that  titles  have 
been  acquired  in  reliance  upon  it,  and  vested  rights 
will  be  disturbed  by  overruling  it.  In  such  a  case 
the  better  course  is  to  leave  the  correction  of  the 
error  with  the  legislature  which  can  so  shape  its 
action  as  to  make  it  prospective  only,  and  thus  pre- 
vent the  injurious  consequences  that  must  follow 
from  judicially  declaring  the  previous  decision 
unfounded. 

§  38.  Customs. — Customs  form  a  large  part  of  the 
common  law,  and  these  customs  are  general  or  par- 
ticular. It  is  a  matter  of  historical  observation  that 
long  before  any  supreme  political  authority  has  come 
into  being  a  series  of  practical  rules  determine  the 
main  relations  of  family  life,  the  conditions  of 
ownership,  the  punishment  of  the  more  violent  forms 


§  38  UNWRITTEN  LAWS.  25 

of  moral  wrong-doing,  and  the  adjustment  of  con- 
tracts. The  mode  in  which  such  rules  are  formulated 
seems  to  be  the  following :  A  spontaneous  practice 
is  first  followed,  and  if  good  and  useful,  is  generally 
copied  over  and  over  again,  the  more  so  as  habit  and 
association  always  render  the  imitation  of  an  old  and 
familiar  practice  easier  than  inventing  a  new  and 
untried  one.  It  is  the  peculiarity  of  the  clasa 
of  customs  which  are  the  true  germs  of  future 
law  that  they  are  being  constantly  brought  to  mind 
and  tested  by  application  to  actions.  Customs  pre- 
scribing the  formalities  and  conditions  of  marriage 
are  brought  into  distinct  consciousness  on  the  forma- 
tion of  every  fresh  family.  The  incessantly  active 
vicissitudes  of  birth  and  death  in  every  community 
call  for  an  unintermittent  series  of  decisions  upon 
the  competing  claims  of  survivors  in  matters  of 
ownership,  and  upon  the  responsibilities  of  those 
who  may  already  be  called  "personal  represent- 
atives" in  matters  of  contract.  The  main  ma- 
chinery for  the  conversion  of  desultory  and  un- 
certain customs  into  fixed  rules  are  the  decisions 
which  are  constantly  demanded  for  the  purpose 
of  ascertaining  the  nature  and  extent  of  an  alleged  cus- 
tom. These  decisions  may  be  made  by  a  casually  se- 
lected arbitrator,  a  village  council,  or  any  man  or  body 
of  men  agreed  upon,  or  who  may  have  authority  to 
hear  the  matter.  The  grounds  of  decision  may  be 
the  personal  mercy  of  the  judge,  or  expediency,  or 
analogy.  Such  decisions  become  precedents  and  by 
them  the  uncertain  custom  becomes  fixed  and  solidi- 
fied as  a  rule  of  civil  conduct,  or  law. 


26  ELEMENTARY  LAW.  §  39 

§  39.  A  custom  is  defined  as  being  such  a  usage  as 
by  common  consent  and  uniform  practice  has  become 
the  law  of  the  place,  or  of  the  subject-matter  to  which 
it  relates.  A  particular  custom  is  distinguished  from 
a  rule  of  the  common  law  in  this,  that  the  latter  is  uni- 
versal, while  the  former  is  particular  to  this  or  that 
place.  It  is  distinguished  from  usage  in  this,  that 
custom  is  the  rule  of  which  usage  is  the  legal  evi- 
dence. The  difference  between  prescription  and  cus- 
tom is  that  while  prescription  is  the  making  of  aright, 
custom  is  the  making  of  a  law.  General  customs  are 
such  as  constitute  a  part  of  the  common  law,  of 
the  country,  and  extend  to  the  whole  country;  par- 
ticular customs  are  those  which  are  confined  to  a 
particular  district;  or  to  the  members  of  a  particular 
class;  the  existence  of  the  former  is  to  be  determined 
by  the  court,  of  the  latter  by  the  jury.  Customs  are 
said  to  be  good  in  law  :  (a)  where  they  have  existed 
time    out   of  mind;    (b)    have  been    uninterrupted; 

(c)  have  been  peaceably  enjoyed  or  acquiesced  in; 

(d)  are  reasonable;  (e)  are  certain;  (f)  are  compul- 
sory; (g)  are  consistent  with  one  another.  Local 
usages  or  customs,  applying  to  particular  callings, 
will  be  enforced  between  parties  who  have  dealt  with 
reference  to  them.  Usages,  which  are  plainly  repug- 
nant to  well  known  rules  of  law,  are  not  recognized 
and  can  not  be  proven.  Customs  of  trade  are 
proven  to  show  the  intention  of  parties  in  mak- 
ing contracts.  But  customs  of  trade  can  not  be 
enforced  against  a  stranger  who  is  ignorant  of 
them.  For  instance,  a  merchant  can  not  charge  a 
customer  interest  on  a  running  account  because  it  is 
his  custom,  unless  the  customer  knows  it.     Nor  will 


r  39  UNWRITTEN  LAWS.  27 

a  custom  be  allowed  to  control  the  interpretation  of 
a  written  instrument  in  opposition  to  its  express 
terms,  and  courts  are  always  averse  to  holding  cus- 
toms good  where  they  vary  the  common  law  obliga- 
tions of  the  parties. 


CHAPTER  V. 

RIGHTS. 

§  40.  Legal  rights. — The  object  of  law  is  to  pro- 
tect us  in  the  enjoyment  of  our  rights  and  to  punish 
invasions  of  these  rights.  Aright  in  one  person 
implies  a  duty  in  all  other  persons  to  respect  that 
right. 

Absolute  rights  belong  to  individuals  in  a  single, 
unconnected  state.  Relative  rights  are  those  which 
arise  from  the  civil  and  domestic  relations. 

We  speak  also  of  natural  rights,  by  which  we 
mean  (a)  right  to  life;  (b)  right  to  liberty;  (c) 
right  to  form  the  family  relation;  (d)  right  to  ac- 
quire property  ;  (e)  right  to  make  contracts.  Moral 
claims,  often  called  rights,  can  not  be  enforced  by 
law:  as  obedience  to  parents,  politeness  to  equals 
and  inferiors,  the  duty  of  charity,  and  the  like. 
These  can  only  be  enforced  by  public  opinion  and  the 
individual  conscience.  A  disregard  of  them  is  pun- 
ished by  the  opprobrium  which  public  opinion  casts 
upon  the  offender.  We  have  here  to  do  with  legal 
rights,  or  those  to  which  the  state  has  given  its 
sanction;  they  are  such  rights  as  can  be  enforced 
by  legal  means  against  the  persons  or  the  community 
whose  duty  it  is  to  respect  them.  These  rights  may  be 
enforced  in  actions  at  law  or  equity  by  the  courts,  or 
by  the  public  prosecution  of  offenders  against  them, 

(28) 


§  41  BIGHTS.  29 

in  which  the  sanction  may  he  penal  or  compensa- 
tory, or  hoth. 

§41.   Meaning    of    natural  rights.  —  Blackstone 

says  the  absolute  rights  of  man  may  be  summed  up 
in  one  general  appellation  and  denominated  the 
natural  liberty  of  mankind,  whereupon  Judge 
Cooley  remarks  that  there  is  no  such  thing  as  natur- 
al liberty.  He  says:  "Every  man  enters  into 
society  by  being  born  into  it,  and  he  gives  up  no 
natural  liberty  but  acquires  liberty  by  becoming  a 
member  of  the  civil  state.  This  liberty  is  civil 
liberty  and  it  constitutes  the  sum  of  a  man's 
civil  rights  as  they  are  declared  and  protected  by 
law."  So  that  man's  liberty  and  rights  are  deter- 
mined by  the  law,  written  and  unwritten,  of  the 
society  or  state  of  which  he  is  a  member.  The  rights 
thus  given  by  law  are  enforced  in  suits  in  the  courts, 
brought  by  or  in  behalf  of  individuals  whose  rights 
are  invaded.  As  to  the  forms  of  procedure  in  en- 
forcing these  rights  more  will  be  said  hereafter. 

§  42.  The  right  of  personal  security. — The  right  of 
personal  security  is  the  most  important  of  all  rights 
and  it  consists  in  a  person's  legal  and  uninterrupted 
enjoyment,  (a)  of  the  right  to  life,  (b)  of  the 
right  to  limbs,  body,  etc.,  including  the  right  to  use 
them  in  lawful  labor,  (c)  right  to  the  preservation 
of  health,  (d)  the  right  to  one's  reputation,  (e) 
the  right  of  free  speech  and  locomotion.  These  rights 
are  only  determined  by  death. 

§  43."  The  right  to  life.— The  right  to  life  begins 
with  the  first  pulsations  in  the  unborn  child.  It  is 
everywhere  a  moral  wrong,  and  inmost  civilized  coun- 
tries it  is  a  crime  to  destroy  human  life,  even  in  its 


30  ELEMENTARY  LAW.  §  44 

first  manifestations.  The  right  to  life  implies  the 
right  to  preserve  it,  and  from  this  springs  the  right  of 
self-defense,  a  right  which  is  not  given  by  law  but  is 
recognized  by  it.  It  is  a  right  which  exists  in  the 
jungle  when  one  is  set  upon  by  a  wild  beast,  and  it 
is  the  same  right  when  asserted  in  the  most  civilized 
society  where  life  is  threatened  by  an  assassin.  Be- 
sides the  right  of  the  individual  to  repel  a  deadly  as- 
sault by  taking  the  life  of  his  assailant,  society  has 
the  right  to  punish  with  death  any  one  who  unlaw- 
fully takes  the  life  of  another.  Blackstone  and  the 
earlier  writers  base  the  right  of  capital  punishment 
upon  the  Mosaic  law,  but  the  better  view  now  is  that 
it  rests  upon  grounds  of  public  polic}T  and  can  only 
be  justified  when  and  because  it  is  necessary  for  the 
preservation  and  security  of  society. 

§  44.  The  right  of  personal  liberty. — The  right  of 
personal  liberty  is  secured  by  that  provision  of  the 
constitution  which  declares  that  "No  person  *  * 
shall  be  deprived  of  life,  liberty  or  property  without 
due  process  of  law."  "The  meaning  of  this  is," 
as  Webster  said  in  his  speech  in  the  Dartmouth  Col- 
lege case,  "that  every  citizen  shall  hold  his  life,  lib- 
erty, property  and  immunities  under  the  protection 
of  general  rules  which  govern  society."  This  term 
liberty  is,  as  has  been  said,  a  negative  term  de- 
noting the  absence  of  restraint.  But  it  is  more — it 
implies  the  right  to  think,  to  speak,  to  act  individu- 
ally or  with  others,  to  labor  for  one's  support  without 
molestation  from  others  ;  it  means  the  right  to  the 
full  exercise  of  one's  faculties  in  lawful  ways.  Civil 
liberty,  which  is  here  meant,  is  liberty  restrained  so 
far  as  is  necessary  for  the  common  good. 


§45  RIGHTS.  31 

§  45.  Habeas  corpus. — To  prevent  unlawful  inva- 
sions of  this  right  to  liberty  the  habeas  corpus  act 
of  the  year  1679  has  been  re-enacted  generally 
in  the  American  states.  And  to  further  secure  itthe 
constitution  of  the  United  States  declares  that  ''The 
privilege  of  the  writ  of  habeas  corpus  shall  not  be  sua* 
pended,  unless  where,  in  case  of  rebellion  orinvasion, 
the  public  safety  may  require  it."  The  law  also 
gives  one  who  is  unlawfully  restrained  of  his  liberty  a 
civil  action  against  the  wrong-doer. 

§  46.  Right  to  health. — The  right  to  the  preservation 
and  enjoyment  of  health  is  protected  and  enforced  by 
suitable  laws.  No  one  has  the  right  to  do  anything 
which  will  impair  the  health  of  another.  To  create 
or  maintain  a  nuisance  by  carrying  on  a  noisome 
trade  in  a  thickly  populated  neighborhood,  to  the 
discomfort  of,  or  to  the  injury  of  the  health  of,  the 
citizens,  would,  where  the  wrong  was  sufficient  to 
amount  to  a  public  nuisance,  be  punished  by  the 
criminal  law,  and  if  the  injury  is  confined  to  one 
or  only  a  few  of  the  citizens,  they  have  a  right  of 
action  in  which  damages  for  the  injury  may  be  re- 
covered from  one  who  creates  or  maintains  the 
nuisance,  and  in  a  proper  case  the  courts  will  inter- 
fere by  injunction  and  prohibit  its  continuance. 

§  47.  Right  to  reputation. — The  right  to  one's  rep- 
utation is  protected  and  enforced  by  the  laws  on  the 
subject  of  libel  and  slander  and  malicious  prosecu- 
tion. To  write  and  publish  anything  of  another 
which  is  false,  and  which  either  charges  a  crime  or 
holds  one  up  to  public  scorn  or  ridicule,  is  libelous, 
and  subjects  the  author  to  an  action  for  damages, 
and  in  many  states  to  a  criminal  prosecution  also.  To 


32  ELEMENTARY  LAW.  §  48 

falsely  say  of  a  man  that  he  has  been  guilty  of  a  crime 
which  would  subject  him  to  infamous  punishment, 
or  to  say  falsely  of  a  woman  that  she  is  unchaste,  is 
slander  and  the  injured  part}*"  may  recover  damages 
of  the  offender  in  a  civil  action.  To  charge  a  man 
falsely  before  a  magistrate  with  the  commission  of  a 
crime  with  malice  and  without  probable  cause,  is 
malicious  prosecution  for  which  in  a  proper  case 
damages  will  be  awarded  to  the  injured  party. 

§  48.  Right  to  property.: — The  right  of  property  is 
secured  by  the  fifth  amendment  to  the  constitution 
of  the  United  States  which  provides  that:  "No  per- 
son shall  be  deprived  of  life  ,  liberty  or  'property 
without  due  process  of  law,"  and  by  the  fourteenth 
amendment,  which  provides  that :  "  No  state  shall 
make  or  enforce  any  laws  which  shall  abridge  the 
privileges  or  immunities  of  citizens  of  the  United 
States,  nor  shall  any  state  deprive  any  person  of 
life,  liberty  or  property  without  due  process  of  law, 
nor  deny  to  any  person  within  its  jurisdiction  the 
equal  protection  of  the  laws." 

§  49.  The  right  of  property  is  the  right  of  dominion, 
ownership,  possession.  Law  writers  have  different  the- 
ories of  the  origin  of  this  right.  Blackstone  says,  "The 
earth  and  all  things  therein  were  the  general  property 
of  mankind  from  the  immediate  gift  of  the  Creator. 

*  By  the  law  of  nature  and  reason,  he  who  first 
began  to  use  it  (property)  acquired  therein  a  kind  of 
transient  property  that  lasted  as  long  as  he  was  using 
it  and  no  longer  ;  or  to  speak  with  greater  precision, 
the  right  of  possession  continued  for  the  same  time 
only  that  the  act  of  possession  lasted.  Thus  the 
ground  was  in  common  and  no  part  was  the  perma- 


§  49  RIGHTS.  33 

nent  property  of  any  man  in  particular;  yet  who- 
ever was  in  the  occupation  of  any  determined  spot  of 
it  for  rest,  or  shade,  or  the  like,  acquired  for  the  time 
a  sort  of  ownership,  from  which  it  would  have  been 
unjust  and  contrary  to  the  law  of  nature  to  have 
driven  him  by  force,  but  the  instant  that  he  quitted 
the  use  ,or  occupancy  of  it,  another  might  seize  it 
without  injustice.". 


CHAPTER  VI. 

PROPERTY    IN    GENERAL. 

§50.  Basis  of  ownership.  —  In  speaking  of  the 
Roman  laws  the  German  jurist  Savigny  says  that 
"all  property  is  founded  on  adverse  possession 
ripened  by  prescription. "  Sir  Henry  Maine  gives  it  as 
his  opinion  that  the  "true  basis  of  the  right  of  prop- 
erty is  not  an  instinctive  bias  towards  the  institution 
of  property,  but  a  presumption  arising  out  of  the 
long  continuance  of  that  institution  that  everything 
ought  to  have  an  owner.  Where  possession  is  taken 
of  an  object  which  is  not  or  has  never  been  reduced 
to  dominion,  the  possessor  is  permitted  to  become 
proprietor  from  a  feeling  that  all  valuable  things 
are  naturally  the  subjects  of  exclusive  enjoyment, 
and  that  in  the  given  case  there  is  no  one  to  invest 
with  the  right  of  property  except  the  occupant.  The 
occupant,  in  short,  becomes  the  owner,  because  all 
things  are  presumed  to  be  somebody's  property  and 
because  no  one  can  be  pointed  out  as  having  a  bet- 
ter right  than  he  to  the  proprietorship  of  this  par- 
ticular thing."  The  individual  right  of  property,  as 
appears  from  a  closer  study  of  ancient  law,  seems  to 
be  a  comparatively  modern  conception.  Ancient 
law  knows  next  to  nothing  of  individuals ;  it  is  con- 
cerned not  with  individuals,  but  with  families ;  not 
with  single  human  beings,  but  groups.     It  is  more 

(34) 


§  51  PROPERTY  IN  GENERAL.  35 

likely  that  joint  ownership  and  not  separate  own- 
ership prevailed  in  primitive  societies. 

§  51.  Origin  of  private  ownership.  —  Out  of  this 
community  ownership,  in  which  the  rights  of  all  the 
individuals  were  blended,  there  grew  the  idea  of 
private  property.  So  long  as  the  family  or  tribe  or 
community  held  property  in  common  the  right  of 
individual  or  private  ownership  was  practically 
ignored,  if,  indeed,  it  existed  at  all.  This  right 
grew  and  strengthened  as  the  family,  tribe  or  com- 
munity disintegrated  under  the  ameliorating  influ- 
ences of  advancing  civilization,  and  as  the  individ- 
ual escaped  from  the  tyranny  of  the  head  of  the 
family  or  the  chief  of  the  tribe. 

§  52.  Its  importance. — The  power  or  assertion  of 
exclusive  ownership  is  manifested  by  boundaries, 
fences,  walls  encircling  land,  and  the  actual  posses- 
sion and  control  of  personal  property.  This  domin- 
ion of  the  individual  over  his  property  is  permitted 
and  defended  by  the  state  as  a  pure  matter  of  con- 
vention and  policy.  In  a  savage  state  it  is  not  es- 
sential, except  as  to  things  of  little  value,  but  in  a 
civilized  society  it  is  the  basis  of  property,  and  with- 
out it  progress  would  seem  to  be  impossible.  Land  be- 
ing indestructible  in  character,  limited  in  extent  and 
incapable  of  increase,  can  not  be  regarded  as  a  true 
subject  of  permanent  individual  appropriation.  And 
however  important  it  is  that  the  tenure  of  the  culti- 
vation of  the  soil  should  be  secure,  the  paramount 
dominion  of  the  state  over  every  part  of  its  territory 
is  a  fact  which  in  a  high  condition  of  social  progress 
can  not  be  emphasized  too  strongly  or  made  to  be 
felt  too  universally  and  really.      By  enactments  pro- 


36  ELEMENTARY  LAW.  §  53 

hibiting  the  entailment  of  estates  in  land  by  abolishing 
primogeniture,  by  succession  taxes,  and  other  devices 
in  case  of  need,  the  states  of  the  Union  have  it  in  their 
power  to  prevent  the  hurtful  monopolization  of  land. 

To  protect  this  right  of  property,  whatever  may  be 
its  origin  or  extent,  the  law  has  provided  numerous 
methods  to  prevent  the  invasion  of  the  right,  and  to 
redress  wrongs  by  which  it  is  violated.  The  laws  for 
redressing  injuries  to  the  rights  to  life  and  personal 
security  are  comparatively  few — the  laws  for  the  pro- 
tection of  the  right  of  property  are,  as  we  shall  see, 
numerous. 

§  53 .  Kinds  of  property. — There  are  three  kinds  of 
property  which  are  the  subject  of  individual  owner- 
ship, real,  personal  and  mixed,  and  these  are  subdi- 
vided into  corporeal  and  incorporeal.  There  can  be 
no  individual  or  exclusive  ownership  of  any  object 
which  can  not  be  exclusively  possessed  or  enjoyed  ; 
so  that  the  elements  of  light,  air  and  water,  which  a 
man  may  occupy  and  use  by  means  of  his  windows, 
his  gardens,  his  walls  and  other  conveniences  are  his 
so  long  as  they  remain  in  his  possession,  but  if  he 
ceases  to  possess  them  or  voluntarily  abandons  them, 
they  return  to  the  common  stock,  and  the  next  taker 
has  an  equal  right  to  seize  and  enjoy  them.  This 
principle  applies  to  animals  ferae  naturae,  surface 
and  subterranean  streams  of  water,  and  veins  or  res- 
ervoirs of  oil  or  gas  beneath  the  soil.  The  doctrine 
of  ancient  lights  which  once  prevailed  in  England, 
that  is,  the  right  that  the  first  builder  upon  ground 
had  to  prevent  the  owner  of  the  adjoining  ground 
from  erecting  a  structure  that  would  shut  out  the 
lio-ht  or  air  from  the  first  builder's  house,  has  been 


§  53  PROPERTY  IN  GENERAL. 

abandoned  in  this  country.  The  owner  of  the  soil 
has  the  right,  in  the  absence  of  boundaiy  agree- 
ments to  the  contrary,  to  dig  as  deep  and  to  build  as 
high  as  he  sees  fit,  so  long  as  he  conforms  to  the 
lines  of  his  own  boundaries,  and  does  not  undermine 
or  injure  the  land  or  buildings  of  his  neighbor. 

Real  property  consists  of  land  and  structures  per- 
manently affixed  to  land. 

Personal  property  consists  of  such  things  as  are 
movable  and  may  attend  the  person  of  the  owner 
wherever  he  may  go,  as  goods,  money,  jewels,  chattels 
and  the  like. 

Mixed  property  is  that  kind  which  is  not  altogether 
real  nor  personal,  but  partakes  of  the  nature  of  both, 
such  as  heirlooms,  pews  in  a  church  ;  and  title  deeds 
to  an  estate  have  been  held  to  be  mixed  property. 

Corporeal  property  consists  of  such  material  things 
as  may  be  apprehended  by  the  senses,  as  lands, 
goods,  animals,  and  may  be  the  subject  of  actual 
manual  possession  and  capable  of  being  transferred 
by  delivery. 

Incorporeal  property  is  that  which  consists  in  legal 
right  merely,  as  choses  in  action,  rights  of  way,  ease- 
ments and  the  like.  It  is  a  legal  right  which  one 
man  has,  not  to  the  property  of  another,  but  in  it;  as 
in  the  case  of  a  right  of  way,  the  land  is  owned  and  in 
possession  of  one  as  corporeal  property,  while  another 
has  the  single  right  of  passing  over  it,  which  is  in- 
corporeal property.  Both  are  valuable  property  rights 
and  the  owners  of  them  respectively  will  be  pro- 
tected in  their  enjoyment  by  the  courts.  Incorporeal 
property  may  be  acquired  by  agreement,  or  it  may  be 


38  ELEMENTARY  LAW.  §  53 

created  by  operation  of  law,  as  when  one  sells  a  par- 
cel of  land  in  the  center  of  his  own  field,  the  buyer 
by  operation  of  law  acquires  a  right  of  way  over  the 
seller's  other  land  which  surrounds  his.  , 


CHAPTER  VII. 

REAL  PROPERTY. 

§  54.   Real  property. — The  law  of  real  property, vU) 
as  it  exists  to-day  in  the  United  States,  is  full  of  in-  ° 
tricacy.     The  commercial  spirit  of  modern  times  has 
broken  down  many  of  the  artificial  barriers  which      / 
the  feudal  system  and  the  English  laws  of  descent 
and  tenures  interposed  to  prevent  the  quick  and  easy 
transfer  of  landed  estates.     But  enough  of  the  old 
rules  survive  to  confuse  and  perplex  the  student,  and 
to  tax  the  experienced  lawyer,  when  he  is  called  upon 
to  decide  concerning  the  rights  of  claimants  to  land. 
It  is  only  intended  here  to  give  in  outline  some  his- 
torical facts  and  general  rules  showing  how  and  from 
what  source  titles  to  land  are  derived,  and  how  they 
are  transferred  from  one  person  to  another. 

§  55.  Titles  in  the  United  States.— It  is  a  funda- 
mental principle  in  the  English  law  that  the  sover- 
eign was  the  original  proprietor  of  all  the  land  in 
the  kingdom.  The  same  principle  holds  good  in  the  Jr^y 
United  States  as  to  all  lands  which  are  known  as 
public  lands.  By  the  terms  of  their  charters,  the 
original  colonies  which  became  states  reserved  the 
right  when  the  Union  was  formed  to  hold  and  dispose 
of  the  lands  within  the  boundaries  of  their  respective 
grants  independently  of  the  nation.  Virginia,  by  ces- 
sion of  parts  of  her  territory  to  the  United  States,  aban- 

(39) 


tty 


40  ELEMENTARY  LAW.  §  56 

doned  her  original  claim,  reserving  to  herself,  how- 
ever, certain  portions  now  in  the  states  of  Kentucky 
and  Ohio,  which  she  bestowed  upon  her  soldiers  who 
served  in  the  Revolutionary  War.  Titles  to  lands 
lying  within  the  territories  acquired  by  purchase 
and  annexation  since  the  formation  of  the  Union, 
such  as  Florida,  Louisiana,  Texas,  California,  New 
Mexico,  Arizona,  Colorado,  are  held  and  derived 
from  two  sources. 

§  56.  Land  acquired  by  treaty.— In  acquiring 
these  territories,  so  far  as  they  were  acquired  by 
,  treaties  and  annexation,  the  United  States  agreed 
that  titles  held  by  grant  from  Spain,  France, 
and  Mexico  should  be  respected  and  treated  as 
If  »  valid.  Lands  not  granted  at  the  date  of  the  treat- 
ies became  part  of  the  public  lands,  and  titles  to 
such  lands  are  derived  from  the  United  States. 

§57.  Indian  titles.  —  In  the  fifteenth  and  six- 
teenth centuries,  when  navigators  from  Europe  made 
their  discoveries  upon  the  American  continent, 
Spain,  France,  Holland  and  England  tacitly  agreed 
that  discovery  and  occupancy  gave  title  to  the  first 
comer,  not  only  against  other  European  nations,  but 
against  the  native  Indians.  The  absolute  title  of  the 
Indians  "yielded  to  the  military,  intellectual  and 
moral  power  of  the  European  immigrants."  The  In- 
dians were  allowed  to  occupy,  but  not  to  dispose  of 
the  land,  except  to  the  government  within  whose 
boundaries  they  lived.  This  rule  grew  out  of  the  ne- 
cessities of  the  case.  To  have  allowed  the  Indian 
tribes  to  make  transfers  of  land  to  other  nations 
would  have  been  a  mischievous  source  of  controversy 
and  war.     The  policy  of  our  government  lias  been 


§  58  REAL  PROPERTY.  41 

to  treat  the  Indians  as  wards.  Whether  our  duty  as 
guardian  has  been  discharged  with  a  due  regard  to 
the  rights  of  our  wards  is  a  matter  upon  which  opin- 
ions differ.  Little  by  little,  however,  the  Indian 
titles  have  been  extinguished,  and  the  Indians  them- 
selves have  been  confined  to  certain  reservations,  un- 
til now  the  lands  they  are  permitted  to  occupy  are  a 
"  mere  patch  "  when  compared  to  the  immense  do- 
main which  they  used  or  possessed  when  the  Euro- 
peans discovered  the  continent. 

§  58.  Injustice  to  Indians. — The  whole  subject  of 
the  relations  of  our  government  to  the  Indians,  and 
of  the  extent  and  nature  of  their  title  to  the  lands 
occupied  by  them,  has  been  treated  so  thoroughly 
and  exhaustively  in  the  opinions  of  Chief- Justice 
Marshall  and  Mr.  Justice  McLean,  in  the  case  of 
Worcester  v.  The  State  of  Georgia,  G  Peters,  p.  515, 
that  it  is  deemed  better  to  refer  the  reader  to  that 
source  of  information,  rather  than  to  attempt  to  set 
forth  here  what  at  best  would  be  but  an  imperfect 
statement  of  it.  In  closing  his  lecture  upon  this 
topic,  Chancellor  Kent  says:  "The  federal  gov- 
ernment, since  the  period  of  our  independence, 
has  pursued  a  pacific,  just  and  paternal  policy  to- 
ward the  Indians  within  their  broad  territories.  It 
has  insisted  on  no  other  claim  to  Indian  lands  than 
the  right  of  pre-emption  on  fair  terms  ;  and  its  plan 
of  permanent  annuities  as  an  ingredient  in  the  con- 
sideration of  purchases  has  been  attended  with  bene- 
ficial effect.  Our  government  has  labored  to  pro- 
tect the  Indians  from  wars  with  each  other,  from 
their  own  propensity  to  intemperance,  and  from  the 
frauds  and  injustice  of  the  whites,  and  to  impart  to 


42  ELEMENTARY  LAW.  §  59 

them  some  of  the  essential  blessings  of  civilization. 
The  Indians  of  the  present  day  are  a  feeble  and  de- 
graded remnant  of  a  once  proud,  spirited,  enterpris- 
ing race,  and  are  hastening  to  annihilation."  The 
author  of  the  book  entitled,  "A  Century  of  Dis- 
honor," who  spent  many  years  with  the  Indians  in  the 
western  territories,  makes  the  statement  that  our  gov- 
ernment has  broken  all  the  treaties  it  ever  made  with 
the  western  tribes,  and  that  so  far  from  pursuing 
"  a  pacific  paternal  policy,"  it  has  played  the  role  of 
a  very  cruel  step-father  in  its  intercourse  with  them. 
§  59.  Definitions. — Having  considered  the  begin- 
ning or  foundation  of  the  titles  to  land  in  this  country, 
we  come  now  to  speak  of  the  interests  which  individ- 
uals may  own  in  land.  (Things  real  consist  of  land, 
''tenements  and  hereditaments]  The  term  land  com- 
prehends any  ground,  soil  or  earth.  It  also  includes 
all  buildings  erected  upon  it,  though  cases  may  arise 
where  by  agreement  of  parties,  or  by  the  nature  of 
the  structure  and  the  intention  with  which  it  was 
placed  upon  the  land,  it  may  have  and  retain 
the  character  of  personal  property.  Under  the 
term  land  is  included  the  water  which  covers  the 
land,  so  that  we  do  not  speak  of  so  many  acres  of 
water,  but  of  so  many  acres  of  "land  covered 
by  water,"  which  was  the  phrase  used  in  pleading 
and  conveyances,  but  now  the  term  land  will 
cover  and  include  all  water,  whether  of  lake  or 
stream,  within  its  bounds.  Tenement,  in  its  origi- 
nal, proper  and  legal  sense,  signifies  everything  that 
may  be  holden,  provided  it  be  of  a  permanent  nature  ; 
whether  it  be  of  a  substantial  and  sensible  or  of  an 
unsubstantial,  ideal  kind.       But   an   hereditament, 


§  (30  REAL  PROPERTY.  43 

says  Sir  Edward  Coke,  is  by  much  the  largest  and 
most  comprehensive  expression;  for  it  includes  not 
only  lands  and  tenements,  but  whatever  may  be  in- 
herited, be  it  corporeal  or  incorporeal,  real,  personal 
or  mixed.  Hereditaments  are  of  two  kinds,  corpo- 
real or  such  as  affect  the  senses,  such  as  may  be  seen 
and  handled  by  the  body;  incorporeal  are  not  the 
objects  of  sensation,  can  neither  be  seen  nor  han- 
dled, are  creatures  of  the  mind,  and  exist  only  in 
contemplation. 

§  60.  Lands  bounded  by  streams. — The  grant  of  a 
stream  of  water  by  that  name  will  not  pass  the  land 
over  which  it  runs,  but  the  grant  of  a  parcel  of  land 
passes  the  property  in  a  stream  of  water  which  runs 
over  it  as  much  as  it  does  the  property  in  the  stones 
at  the  bottom  of  the  stream.  One  who  owns  land  on 
both  sides  of  a  stream  owns  the  whole  bed  of  the 
stream.  When  a  stream  bounds  the  lands  of  two, 
each  owns  to  the  thread  of  the  stream.  The  owner 
of  land  over  which  water  flows  has  the  right  to  use 
the  water  without  diminution  or  obstruction,  except 
so  far  as  the  reasonable  use  of  the  same  by  other  ri- 
parian owners  may  affect  it.  Strictly  speaking,  he 
has  no  property  in  the  water  itself,  but  a  simple  use 
of  it  while  it  passes  along.  No  proprietor  of  land 
bounded  by  a  water-course  has  a  right  to  use  the 
stream  to  the  prejudice  of  another  proprietor.  He 
may  not  dam  it  so  that  it  overflows  the  lands  of 
those  above  him,  except  (1)  where  he  gets  their  per- 
mission, or  (2)  where  for  certain  public  uses  the 
statute  authorizes  him  to  do  so  upon  compensating 
the   owners   for  the  injury.     He  may  not  foul  the 


44  ELEMENTARY  LAW.  §  61 

stream  by  carrying  on  a  noxious  trade  which  poisons 
the  water  or  makes  it  unfit  for  use. 

Where  land  is  described  as  bounded  by  a  non- 
navigable  lake,  pond,  or  stream,  the  general  rule  is 
that  the  boundary  is  the  center  or  thread.  This  rule 
does  not  hold  where  there  is  anything  in  the  grant 
to  indicate  a  different  intention.  Where  land  abuts 
on  the  sea  or  its  estuaries,  or  upon  rivers  in  which 
the  tide  ebbs  and  flows, — only  these  being  navigable 
at  common  law, — the  boundary  is  at  high-water 
mark.  In  America  there  is  some  conflict  as  to  what 
rule  shall  be  applied  to  fresh  water  lakes  and  the 
large  rivers,  which  are  navigable  in  fact  but  not  at 
common  law.  As  to  these  the  weight  of  authority 
places  the  boundary  at  low-water  mark.  Where  a 
non-navigable  stream  gradually  changes  its  course, 
the  boundaries  follow  the  change  in  the  waters ;  but 
if  the  change  be  abrupt,  the  ownership  remains  ac- 
cording to  the  former  bounds. 

§  61.  A  proprietor  of  an  island  in  a  water-course 
owns  to  the  thread  of  each  branch  of  the  stream, 
which  in  its  natural  course  divides  it  from  the  main 
land.  And  where  a  water-course  is  thus  divided  by 
an  island,  and  the  smaller  portion  descends  on  one 
side,  the  proprietor  by  whose  bind  such  smaller 
quantity  flows  is  entitled  to  no  more  water  than 
naturally  runs  between  his  bank  and  the  island. 

§  62.  Islands. — Where  islands  are  formed  in  the 
sea  or  a  navigable  river,  they  belong  to  the  sov- 
ereign ;  in  rivers  not  navigable  and  above  where  the 
tide  ebbs  and  flows,  they  belong  to  the  owners  of  the 
adjoining  land.  If  .there  be  an  island  exactly  in  the 
middle  of  the  stream,  it  is  equally  divided  between 
the  two  proprietors.     But  if  one  portion  approaches 


§  63  REAL  PROPERTY.  45 

nearer  to  one  side  of  a  stream  than  it  does  to  the 
other,  the  greater  part  belongs  to  the  owner  of  the 
nearer  estate,  according  to  its  approximation  thereto. 
When  a  river  is  the  boundary  line  between  two  na- 
tions or  states,  if  the  original  property  be  in  neither 
and  there  be  no  agreement  about  it,  each  hold-  to 
the  middle  of  the  stream.  But  where  one  state  is  the 
original  proprietor,  and  grants  the  territory  on  one 
side,  as  in  the  cession  by  Virginia  of  the  territory 
northwest  of  the  Ohio  river,  it  retains  the  river  within 
its  domain  and  the  boundary  of  the  lands  ceded  ex- 
tends only  to  low- water  mark. 

§  63.  Fixtures. — There  is  much  controversy  as  to 
what  is  a  proper  definition  of  a  fixture.  A  fixture 
is  something  annexed  to  land,  as  buildings,  machin- 
ery  or  The  like.  Sometimes  the  manner  and  purpose 
of  the  annexation  makes  it  a  part  of  the  realty,  some- 
times though  annexed  in  a  permanent  manner  it  re- 
tains its  character  of  personalty.  Thecliattcl  must 
not  only  be  laid  upon  the  land,  it  must  be  annexed, 
set  into,  or  fastened  upon  it,  to  become  a  part  of  the 
realty.  Nor  will  every  such  annexing  make  it  part 
of  the  realty.  If  a  tenant  puts  a  building  or  ma- 
chinery upon  land  with  the  express  agreement  with 
the  landlord  that  at  the  end  of  the  term  it  may  be  re- 
moved, it  does  not  become  a  part  of  the  realty,  un- 
less during  or  at  the  end  of  the  term  he  fails  to  re- 
move it.  But  where  the  duration  of  the  tenancy  is  un- 
certain, the  law  allows  the  tenant  a  reasonable  time 
for  removal  of  fixtures  after  the  end  of  the  tenancy. 
The^geinBral  rule,  is  that  in  the  absence  of  a  valid 
agreement  to  the  contrary,  fixtures  once  annexed 
become  part  of  the  land,  so  that  conveyances,  mort- 


46  ELEMENTARY  LAW.  §  64 

gages  or  other  liens  upon  the  land  cover  them. 
When  the  tenant  puts  up  trade  fixtures  to  be  used  in 
connection  with  his  particular  business,  it  has  been 
held  to  be  such  a  declaration  of  intention  as  to  pre- 
vent their  becoming  part  of  the  land.  The  old  rules 
have  been  relaxed,  so  that  it  may  be  said  that  as  be- 
tween landlord  and  tenant,  the  latter  may  remove  all 
such  fixtures  of  a  chattel  nature  as  he  himself  has 
erected  on  the  premises  for  ornament,  domestic  con- 
venience, or  to  carry  on  trade,  provided  that  such 
removal  may  be  made  without  material  injury  to  the 
freehold.  The  rule  is  modified  sometimes  by  the 
usages  and  customs  of  particular  localities  or  trades. 

As  between  vendor  and  vendee,  the  rule  is  that 
all  fixtures  attached  to  the  land  by  the  vendor,  and 
on  the  land  at  the  time  of  the  sale,  pass  to  the  ven- 
dee, unless  they  are  expressly  reserved  by  the  terms 
of  the  contract  of  sale. 

§  64.  As  between  heir,  devisee  and  executor,  the 
rule  is  that  fixtures  annexed  to  the  land  by  the  tes- 
tator go  to  the  heir  or  devisee,  and  the  executor  has 
no  right  to  them,  unless  the  intent  of  the  testator  to 
have  them  treated  as  personalty  has  been  plainly  ex- 
pressed. In  an  early  case  in  Ohio  the  following 
were  enumerated  as  the  requisites  of  a  fixture:  (1) 
That  it  be  actually  annexed  to  the  realty,  or  some- 
thing appurtenant  thereto.  (2)  That  it  be  appro- 
priate to  the  use  or  purpose  of  that  part  of  the 
realty  with  which  it  is  connected.  (3)  That  it  be 
intended  by  the  party  making  the  annexation  to  be 
a  permanent  accession  to  the  freehold.  What  the 
intention  was  in  making  the  annexation  is  inferred 
from    the    following    facts,   viz.,    the    nature  of  the 


§  65  REAL  PROPERTY.  47 

article  annexed;  the  relation  of  the  party  making 
the  annexation,  whether  owner,  tenant,  etc.  ;  the 
structure  and  mode  of  annexation  ;  the  purpose  or 
use  for  which  the  annexation  has  heen  made. 

§  G5.  Boundaries. — Land  has  an  indefinite  extent, 
upwards  and  downwards.  No  man  has  a  right  to 
erect  a  structure,  any  part  of  which  overhangs  the 
the  land  of  another.  If  a  tree  planted  on  one  man's 
land  extends  its  branches  over  the  adjoining  prem- 
ises, to  the  injury  of  another,  the  owner  is  responsi- 
ble for  the  damages  caused  thereby,  and  the  injured 
party  may  remove  so  much  of  it  as  overhangs  his 
premises.  A  grant  of  land  carries  everything  on  it 
or  beneath  it,  whether  it  be  woods,  houses,  waters 
or  metals, — in  a  word,  it  carries  everything  terres- 
trial. 

§  66.  Boundary  lines  may  be  fixed  by  agreement. 
They  may  be  established  by^prescription.  They  may 
be  settled  by  th^  conduct  of  the  parties  amounting 
to  an  estoppel.  In  the  absence  of  these  the  law  fixes 
boundary  limits  as  a  matter  of  policy,  and  in  the  in- 
terest of  peace.  A  grant  of  land  bounded  by  a  navi- 
gable river,  where  the  tide  ebbs  and  flows,  extends 
only  to  the  high-water  mark,  but  it  has  been  held 
that,  subject  to  government  supervision  and  control, 
the  owner  of  adjacent  lands  has  the  right  to  erect 
wharves  and  piers  extending  to  low-water  mark. 

§  67.  Land  bounded  by  highways. — Where  a  pub- 
lic road  is  the  boundary  line,  the  owners  of  land  at 
each  side  own  to  the  center  of  the  road,  and  they  have 
the  exclusive  right  to  the  soil,  subject  to  the  right  of 
passage  by  the  public,  and  may  use  it  in  any  way 
which  does  not  impair  the  public  right.     This  rule 


48  ELEMENTARY  LAW.  §  68 

as  to  ownership  to  the  center  of  the  road  will  always 
prevail  unless  there  is  an  express  abandonment  of 
the  right  by  the  owners.  If,  under  the  power  of 
eminent  domain,  the  highway  is  appropriated  in 
whole  or  in  part  for  any  other  public  use,  the  ad- 
jacent land-owners  are  entitled  to  compensation  for 
such  increased  burden. 

§  68.  Appurtenances. — In  grants  of  land,  the 
phrase,  "and  all  appurtenances,"  is  commonly 
used.  An  appurtenance  is  a  thing  belonging  to  an- 
other thing  ancP which  passes  as  incident  to  the 
principal  thing.  It  is  inferior  to  the  thing  granted, 
but  of  the  same  naturej  Land  can  not  be  appurte- 
nant to  land,  and  a  conveyance  of  land  bounded  by 
the  line  of  an  adjoining  highway  will  pass  no  title  to 
the  soil  over  which  the  highway  passes,  but  the 
grant  will  give  the  grantee  a  perpetual  right  of  way 
as  an  appurtenance.  As  a  general  rule,  a  grant  of  land 
carries  with  it  as  appurtenances  all  apparent  benefits 
and  easements  that  are  incident  to  it  and  necessary 
to  its  beneficial  enjoyment,  and  which  the  grantor 
had  full  power  to  convey;  and  they  pass,  whether 
acquired  by  grant  or  prescription,  or  originally  in- 
cident to  the  estate.  A  grant  of  a  mill  with  ap- 
purtenances covers  the  head  of  water  by  which  it 
runs,  also  all  water  rights  and  privileges  used  with 
and  incident  to  it.  It  is  not  necessary  to  use  the 
term,  "appurtenances,"  to  convey  rights  that  act- 
ually are  such,  for  they  pass  as  incident  to  the  land, 
whether  that  term  is  employed  or  not. 


CHAPTER  VIII. 

INCORPOREAL    PROPERTY. 

§  69.  Kino's  of  incorporeal  property. — Judge  Cooley 
criticises  Blackstone's  definition  of  an  incorporeal 
hereditament  as  "a  right  issuing  out  of  a  thing 
corporate  (whether  real  or  personal)  or  concerning 
or  annexed  to,  or  exercisable  within  the  same,"  and 
defines  it  as  "/any  intangible  right  which  is  capable 
of  being  inherited,  though  it  may  exist  wholly  inde- 
pendent of  any  corporeal  property  whatsoever. V 

Blackstone  says  there  are  ten  sorts  of  incorporeal 
hereditaments  :  advowsons,  tithes,  commons,  ways, 
offices,  dignities,  franchises,  corodies  or  pensions, 
annuities  and  rents. 

§T70.  Advowsons. — Advowson  is  the_right  of  pre- 
sentation to  a  church,  the  right  of  the  lord~bf  a 
manor  to  designate  what  parson  shall  minister  to  the 
parish  and  enjoy  the  living  appurtenant  to  it.  This 
subject  has  no  place  in  American  law,  under  which 
all  religious  societies  are  purely  voluntary,  and  pas- 
tors are  chosen  as  the  people  see  fit,  or  as  the  usages 
of  the  particular  ecclesiastical  organizations  pre- 
scribe. 

§  71.  Tithes. — Strictly  speaking,  tithes  are  a  tenth 
of  the  annual  increase  and  profits  of  lands  and  stock 
upon  lands  and  the  personal  industry  of  the  inhabi- 
tants. In  all  countries  where  there  are  religions  es- 
4  (49) 


50  ELEMENTARY  LAW.  §   72 

tablished  and  maintained  by  public  law,  provision  is 
made  for  the  support  of  the  clerg}r.  It  is  supposed 
that  tithes  were  introduced  in  England  in  the  sixth 
century,  when  Augustin,  the  monk,  planted  Chris- 
tianity among  the  Saxons.  The  first  decree  enforc- 
c  ing  the  payment  of  tithes  was  made  A.  D.  786.  At 
w  first,  these  tithes  were  paid  to  the  bishops,  who  al- 
lotted them  among  the  clergy  of  their  dioceses,  but 
when  the  bounds  of  the  parishes  became  definitely 
fixed,  the  tithes  were  paid  directly  to  the  priests  of 
the  several  parishes.  Sometimes,  by  agreement  be- 
tween the  land-owner  and  the  parson,  some  land  or 
other  recompense  was  given  in  lieu  and  satisfaction  of 
tithes.  And  sometimes  by  prescription  certain  lands 
or  persons  were  exempted  from  the  payment  of  tithes. 
A  modus,  as  it  is  called,  was  a  special  manner  of  tith- 
ing, whereby  the  general  Law  was  altered  as  where 
something  in  lieu  of  the  tenth  part  of  the  annual 
increase  was  paid  to  the  parson.  Tojnake  a  modus 
good,  it  must  be  certain  and  invariable.  The  thing 
paid  must  be  beneficial  to  the  parson.  It  must  be 
different  from  the  thing  compounded  for.  It  must 
be  as  durable  as  the  tithes  discharged  by  it.  Al- 
though interesting  as  a  historical  study  of  the 
growth  and  progress  of  the  law,  it  is  not  deemed  wise 
or  profitable  to  consider  more  fully  in  this  place 
these  matters  which  do  not  enter  into  the  practical 
administration  of  the  law  in  this  country. 

§  72.    The  right  of  common. — This  is  defined  to  be 
a  profit  which  a  man  hath  in  the  land  of  another. J 
By  the  English  law,  the  lords  of  manors  were  re- 
quired to  allow  certain  of   the  manorial  lands  to  re- 
main unenclosed,  upon  which  the  inhabitants  could 


§  73 


INCORPOREAL  PROPERTY. 


51 


pasture  what  were  called  commonable  beasts,  which 
were  either  beasts  of  the  plow,  or  such  as  manure  the 
ground.  As  lands  became  more  valuable,  the  lords 
of  the  manors  began  to  enclose  the  commons,  and  par- 
liament in  the  reign  of  George  III  enacted  a  law 
which  has  been  repeatedly  amended,  regulating  the 
inclosure  of  commons.  The  right  of  common  in  the  —  V,  \ 
United  States  is  a  narrow  right.  In  tide- waters  the 
right  of  taking  fish  is  common  to  all  citizens.  In 
rivers  where  the  tide  does  not  ebb  and  flow,  it  is  said 
that  the  proprietor  of  the  bank  has  an  exclusive  right 
of  fishery  to  the  thread  of  the  stream,  but  it  has  been 
held  that  in  large  navigable  rivers,  such  as  the  Sus- 
quehanna, the  public  at  large  have  a  common  right 
of  fishery.  For  the  taking  of  fish  where  the  public 
have  the  right,  no  person  can  lawfully  go  upon  the 
land  of  another  without  license.  In  ordinary 
streams  within  the  boundaries  of  a  man's  land,  or 
where  the  stream  is  the  dividing  line  between  two 
proprietors,  no  one  has  a  right  to  fish  without  the  li- 
cense of  the  riparian  proprietors. 

Kent  sums  up  the  American  doctrine  thus  :  The 
right  of  fishing  in  navigable  or  tide  waters  below 
high-water  mark  is  a  common  right.  In  streams  not 
navigable,  the  owners  of  adjacent  lands  have  the  ex- 
clusive right  of  fishing  each  on  his  own  side.  Such 
right  is  held  subject  to  the  public  use  of  the  waters 
as  a  highway  and  to  the  free  passage  of  fish. 

§  73.    Right  of  way. — The  right  of  way  is  the  right 

of  going  over  another  man's,  land.     Ways  are  either 

I  public  o£ private.     A  publicway  may  be  established 

either  by  the  dedication  of  the  owner  of  the  land,  oi 

by  the  appropriation  of  a  man's  land  for  the  purpose 


52  ELEMENTARY  LAW.  §  73 

in  proceedings  at  law,  under  the  authority  of  the 
state  by  virtue  of  its  right  of  eminent  domain. 
And  first  of  the  manner  in  which  the  owner  may 
dedicate  his  land  as  a  public  way.  Dedication  is  the 
setting  apart  of  land  for  public  use.  It  is  essential 
'%Ho  every  valid  dedication  that  it  should  conclude 
the  owner,  and  that  as  against  the  public  it  should 
be  accepted  by  the  proper  local  authorities  or  by 
general  public  user.  There  are  two  kinds  of  ded- 
ication /statu  tpr_y_dedication  and  .commonlaw  dedi- 
cation.'  Where  the  statute  requires  that  the  dedica- 
tion shall  be  evidenced  in  a  particular  way,  as  by  0 
<  lA^plats  or  maps,  and  that  they  shall  be  acknowledged  : 
before  some  competent  officer,  these  requirements 
must  be  strictly  complied  with.  Unless  the  proper 
local  authorities  accept  the  dedication,  such  ways 
can  not  properly  be  called  public  highways,  in  the 
sense  that  the  expense  of  maintenance  can  be 
cast  upon  the  public.  But  where  lots  have  been  pur- 
chased, according  to  plats  or  maps  showing  certain 
streets  and  alleys  upon  them,  these  alleys  and 
streets  will  be  kept  open  as  ways  for  the  benefit  of 
such  persons  as  have  made  such  purchases.  A  stat- 
utory dedication  is  by  way  of  grant,  a  common  law 
dedication  arises  by  way  of  an  estoppel  in  pais.  No 
writing  is  necessary  to  a  common  law  dedication — no 
formality.  The  mere  throwing  open  the  land  to  the 
use  of  the  public  for  a  way  is  a  dedication  if  the 
public  accepts  it.  It  must  be  clear,  however,  that  the 
land-owner  intends  to  give  the  right.  The  fact  that 
the  owner  acquiesced  in  the  use  of  the  way  by  the 
public  for  twenty  years  is  sufficient  evidence  of  in-  A, 

tent.     If  the  public  are  in  the  habit  of  using  such  a     k  ^ 


M 


-i. 


§  74  INCORPOREAL  PROPERTY.  53 

way,  and  the  owner  does  not  wish  to  dedicate  it,  he 
can  by  unequivocal  acts  assert  his  right,  as  by  putting 
gates  or  fences  across  the  way  even  once  in  a  year.  U  -vv*^ 
It  lias  been  said  that  one  act  of  obstruction  by  the 
owner  is  better  evidence  of  intent  than  years  of  ac- 
quiescence in  the  use  by  the  public.  But  if  the  use 
is  continuous  and  uninterrupted  for  twenty  years  the 
way  is  established.  Dedication  may  arise, in  a 
shorter  period  than  twenty  years,  when  the  intent  to 
dedicate  is  positive  and  manifest,  and  the  question 
of  intent  is  a  question  of  fact  for  the  jury.  When  a 
dedication  is  once  made  it  can  not  be  revoked. 

§  74.  Private  rights  of  way. — Private  rights  of 
way  are  of  two  kinds:  Those  which  are  purely  personal 
and  can  not  be  assigned,  and  those  which  are  appurte- 
nant or  annexed  to  an  estate  and  pass  with  a  convey- 
ance of  the  estate.  A  private  way  maybe  created  by  a  jj^w  i 
/  grapt,  or  it  may  ariseyby operationjDfJaw  or  necessity. 
Itarisesby  operation  of  law  ornecessity  where  one  sells 
a  parcel  of  land  which  is  surrounded  wholly  by  the  A? 
lands  of  the  grantor  or  by  his  lands  and  the  lands  of 
others.  In  such  case,  the  vendee  has  the  right  of 
way  over  the  lands  of  the  vendor  to  the  public  high- 
way. The  right  to  locate  the  way  rests  first  in  the 
vendor.  If  he  fails  to  locate  it  within  a  reasonable 
time  in  a  convenient  manner,  the  right  to  locate  it  is 
in  the  vendee,  and  when  once  located  it  must  be  ad- 
hered to.  The  doctrine  of  dedication  has  no  appli-  I '  ,lU*-  c 
cation  to  a  private  way,  though  that  right  may  be  es- 
tablished by  uninterrupted  user  for  twenty  years. 
To  make  good  a  private  way  by  prescription,  the  use  ^ 
must  be/definite  as  to  manner  and  location.  It  must 
be  under  a  claim  adverse  to  the  owner  and  not  un- 


54  ELEMENTARY  LAW.  §  75 

der  license.  It  must  continue  for  the  whole  period, 
i.  e.,  twenty  years,  without  interruption. 

§  75.  Temporary  rights  of  way. — There  is  a  tem- 
porary right  of  way  over  the  adjoining  land  if  a 
public  highway  becomes  impassable,  as  by  the 
falling  of  a  tree,  the  washing  away  of  a  bridge  or  a 
part  of  the  highway  itself.  But  this  is  not  so  of  a 
private  right  of  way,  the  reason  being  that  the  owner 
of  the  way  may  be  bound  to  repair,  and  the  condi- 
tion of  the  private  way  may  be  owing  to  his  neglect ; 
but  if  a  public  highway  becomes  impassable,  it  is  for 
the  general  good  that  the  people  should  be  entitled 
to  pass  in  that  direction. 

§  76.  Easements. — An  easement  is  a  right  in  the 
owner  of  one  parcel  of  land,  by  reason  of  such  own- 
ership, to  use  the  land  of  another  for  a  special  pur- 
pose not  inconsistent  with  a  general  property  in 
the  owner.  We  have  already  spoken  of  rights 
of  way,  both  public  and  private,  which  are  both 
easements.  To  these  may  be  added  the  right  to 
water  cattle  at  a  spring  or  pond  or  stream  on  the  land 
of  another,  the  right  to  take  and  use  such  water 
for  domestic  purposes,  the  right  of  the  owner  of  a 
building  to  discharge  the  water  from  his  roof  upon 
another's  land,  the  right  to  swing  doors,  shutters, 
gates  over  another's  land,  the  right  to  lay  pipes  to 
conduct  water,  gas,  sewage,  the  right  to  put  a  parti- 
tion fence  or  a  party  wall  partly  on  the  land  of 
an  adjacent  proprietor.  A  mere  permission  by  one 
land-owner  to  another  to  use  his  land  for  a  given 
purpose  is  a  license,  and  will  not  be  an  easement. 
An  easement  by  prescription  can  only  be  perfected 
in  the  manner  pointed  out  as  to  rights  of  way. 


§  77  INCORPOREAL  PROPERTY.  55 

A  party  wall  is  a  wall  built  by  agreement  on 
the  division  line  of  estates,  which  each  proprietor 
has  a  right  to  use  as  a  support  to  buildings.  Each 
owner  of  land  has  an  easement  in  the  adjoining  laud 
for  lateral  support  of  his  land  in  its  natural  state. 
This  easement  does  not  extend  to  any  structures 
which  increase  the  weight.  In  constructing  a  party 
wall,  the  builder  must  erect  it  in  a  skillful  manner, 
and  if  he  does  not  do  so  he  is  liable  for  any  damage 
that  may  result.  Either  party  may  repair  the  wall 
by  underpinning,  or  increasing  its  height,  but  he  must 
be  careful  that  no  damage  is  occasioned  thereby. 
Where  one  erects  a  wall  partly  on  the  land  of  an- 
other, who  sees  it  and  has  reason  to  believe  that  the 
builder  looks  to  him  for  contribution,  the  jury  may, 
from  such  conduct,  infer  that  he  agreed  to  pay  for 
it.  Express  agreements  of  the  parties  in  relation  to 
the  building,  use,  repair  and  payment  for  party  walls 
are  binding.  It  is  an  unsettled  question,  however, 
whether  such  agreements  continue  in  favor  of  and 
against  the  assignees  or  grantees  of  the  parties  who 
make  them. 

Easements  may  be  lost  by  non-user  where  an  in- 
tention to  abandon  may  be  inferred.  They  are  ex- 
tinguished  where  the  same  party  becomes  the  owner 
of  the  dominant  and  servient  estates,  the  maxim  be- 
ing that  no  man  can  have  an  easement  on  his  own 
land. 

§  77.  Offices  and  dignities.— Offices  and  dignities, 
which  are  mentioned  by  Blackstone  as  incorporeal 
hereditaments,  cannot  be  so  considered  in  a  country 
where  most  offices  are  elective  at  stated  times  for  lim- 
ited   terms,  and  where  none  are  held    longer  than 


56  ELEMENTARY  LAW.  §  78 

during  good  behavior.  Officers  in  private  corpora- 
tions are  mere  agents,  whose  authority  and  duties 
will  be  treated  of  in  their  appropriate  place. 

§  78.  Franchises. — A  franchise  is  a  special  privi- 
lege conferred  by  government  on  individuals,  which 
does  not  belong  to  the  citizens  of  the  country  gen- 
erally by  common  right.  Kent  defines  it  as  a 
particular  privilege,  conferred  by  grant  from  the 
government  and  vested  in  individuals.  In  a  popular 
sense,  it  is  synonymous  with  right  or  privilege,  as 
the  elective  franchise.  Among  the  most  important 
of  modern  franchises  is  the  right  to  be  a  corporation, 
the  franchise  to  control  a  toll  road,  or  bridge,  to 
keep  a  ferry. 

§  79.  Rents. — Rents  are  a  species  of  incorporeal 
property.  Rent  is  a  compensation  given  for  the 
possession  of  some  corporeal  inheritance.  It  may  be 
paid  in  money,  in  kind,  by  services,  or  in  any  man- 
ner agreed  upon  by  the  parties.  Rent  irregularly 
due  and  payable  on  the  premises  from  which  it 
arises.  Where  a  forfeiture  of  a  term  for  non-pay- 
ment of  rent  is  attempted,  the  rent  by  the  old  rule  was 
strictly  demandable  and  payable  before  the  time  of 
sunset  of  the  day  whereon  it  is  reserved,  but  nowitis 
not  considered  due  until  midnight  of  the  natural  day 
on  which  it  is  payable.  The  day  of  payment  is 
usually  fixed  by  the  contract,  and  when  this  is  silent 
it  is  payable  monthly  or  quarterly,  according  to  the 
custom  prevailing  at  the  time  and  place. 

§  80.  Liens. — A  lien  is  the  right  of  a  creditor  to 
have  his  debt  or  demand  satisfied  out  of  specific 
property.  Liens  may  be  classified  as  statutory,  equita- 
ble, created  by  contract  or  common   law  liens.     The 


§  31         INCORPOREAL  PROPERTY.  57 

lien  of  a  state  or  municipality  for  taxes,  liens  given  to 
contractors,  material  men  and  laborers  upon  houses 
or  other  structures  upon  which  they  have  bestow- 1 
labor,  or  for  which  they  have  furnished  material, 
liens  of  judgments,  a.re_cx£aleil by- statute.  An  arti- 
san or  mechanic  who  receives  material  with  which 
he  constructs  an  article  for  another,  or  receives  an 
article  to  be  repaired,  has  a  lien  upon  the  article  for 
his  labor.  An  innkeeper  has  a  lien  upon  the  bag- 
gage and  personal  effects  of  his  guest  for  his  board 
and  lodging.  A  carrier  or  a  workman  has  a  lien  for 
his  charges.  An  attorney  has  a  lien  upon  papers  or 
funds  of  his  client  in  his  possession  for  his  services. 
A  banker  has  a  lien  on  his  debtors'  funds  in  the^y* 
bank.  These  are  examples  of  common  law  liens.  Ar\ 
creditor  of  a  failing  or  insolvent  debtor  has  a  lien 
upon  his  assets  ;  a  seller  of  land  who  receives  a  part 
of  the  purchase-money  has  a  lien  upon  the  land  for 
the  unpaid  balance ;  a  partner  who  has  advanced 
money  to  the  firm  has  a  lien  upon  the  interests  of  his 
copartners.  Persons  not  bound  by  any  obligation 
to  do  the  service,  who  perform  labor  in  saving  a  ship 
or  her  cargo,  or  the  lives  of  persons  belonging  to 
her,  from  danger  or  loss  in  cases  of  shipwreck,  dere- 
lict, capture  or  the  like,  are  salvors  and  have  a  lien 
upon  the  ship  and  cargo  for  the  value  of  the  services 
so  rendered.  These  are  some  examples  of  equitable 
lieiis. 

§  81.  Liens,  by  contract  are  created  by  the  express 
agreement  of  the  parties,  as  in  case  of  a  loan  of 
money,  when  at  the  time  the  loan  is  made  the  bor- 
rower either  verbally  or  by  written  instrument 
pledges   a  specific  piece  of  property  as  security  for 


58  ELEMENTARY  LAW.  §  81 

the  repayment  of  the  money.  When  the  property  is 
personal  and  is  placed  in  the  hands  of  the  lender,  it 
is  a  pledge.  When  the  borrower  retains  possession, 
but  executes  and  delivers  to  the  lender  an  instrument 
in  writing,  giving  the  lender  the  right  to  have  his 
debt  paid  out  of  the  property  described  in  the  instru- 
ment, it  is  a  mortgage  which  creates  a  lien  upon  such 
property,  which  may  be  enforced  by  foreclosure,  if 
the  debt  is  not  paid  at  maturity. 


CHAPTER   IX. 

THE    FEUDAL    SYSTEM. 

§  82.  Its  origin  and  nature. — While  it  is  not 
intended,  nor  is  it  necessary  here,  to  give  a  minute 
account  of  the  feudal  system  of  England,  some  ac- 
quaintance with  its  principal  features  is  requisite  to 
an  understanding  of  the  subject  of  estates  in  land. 
The  germs  of  a  feudal  system  existed  among  the 
Romans,  but  in  its  entireness  it  never  subsisted  any- 
where before  it  arose  in  the  middle  ages  in  those 
parts  of  Europe  in  which  the  Germanic  nations  set- 
tled themselves  after  the  subversion  of  the  Roman 
empire.  The  essential  character  of  the  estate  de- 
nominated "feud,"  or  "  fief  "  was  that  from  the 
first  and  always  it  continued  to  be  not  an  estate  of  ab- 
solute ownership.  The  property,  the  ownership  re- 
mained in  the  grantor,  the  grantee  was  a  mere  ten- 
ant. Originally,  these  "fiefs"  were  resumable  at 
the  pleasure  of  the  grantor,  which  made  the  tenure 
precarious  and  kept  the  tenant  in  a  state  of  timorous 
vassalage.  To  incur  the  displeasure  of  his  chief  or 
grantor  meant  expulsion  from  his  estate.  The  grantor 
was  known  as  the  suzerain  or  lord,  and  the  grantee 
as  vassal  or  tenant.  Subsequently,  the  relation  of 
lord  and  tenant  was  ameliorated,  first  by  giving  the 
tenure  a  fixed  duration  for  a  term  of  years.  Later 
still,  the  relation  and  tenure  became  permanent,  the 

(59) 


60  ELEMENTARY  LAW.  §  83 

vassal  taking  an  oath  of  fealty  to  his  lord,  in  which 
he  bound  himself  to  render  fixed  services,  in  return 
for  which  he  was  to  have  his  lands,  so  long  as  the 
service  was  rendered.  The  obligation  was  mutual 
and  an  attempt  of  the  lord  to  dispossess  a  tenant, 
who  was  faithful,  was  looked  upon  as  an  act  of  in- 
justice. These  fiefs  were  then  extended  to  life  tenures. 
Then  they  became  descendible  to  the  eldest  son,  and 
afterwards  to  the  collateral  lines,  and  still  later  they 
became  inheritable  by  females.  When  fiefs  first  be- 
came hereditary  is  a  matter  of  dispute  with  his- 
torians, but  in  all  the  changes  in  the  system  the 
relation  of  lord  and  tenant  survived,  the  ultimate 
property  was  still  in  the  lord.  Even  after  fiefs  became 
descendible,  the  new  occupant  was  required  to 
make  a  new  oath  of  fealty  and  acknowledge  his  vas- 
salage, and  thus  obtain,  in  form  at  least,  a  new  grant 
from  his  lord,  and  he  was  bound  to  the  same  service 
which  was  the  consideration  for  the  first  grant.  In 
case  of  the  extinction  of  the  descendible  line,  or 
where  the  fief  was  lost  or  forfeited  by  the  crime  of 
the  vassal,  it  escheated  to  the  lord.  At  first  it  was 
only  sovereign  princes  who  granted  fiefs,  but  when 
they  became  hereditary  and  fixed,  the  vassal  himself 
would  grant  portions  of  his  fief  to  others,  and  thus 
there  grew  up  the  practice  of  subinfeudation. 

§  83.  Allodial  estates. — Fiefs  were  not  the  only 
sort  of  land  tenures  in  the  ancient  Germanic  prov- 
inces. Some  lands  were  allodial,  that  is  they  were 
held  by  absolute  and  independent  title,  and  the 
holder  owing  no  fealty  to  an  over-lord  was  free  from 
the  exactions  and  burdens  to  which  the  holder  of  a 
fief  was  subject.     But  this  freedom  from  vassalage 


§  84  THE  FEUDAL  SYSTEM.  61 

had  its  disadvantages.  If  the  holder  by  such  a  ten- 
ure owed  no  fealty,  he  did  not  enjoy  the  protection 
of  a  superior,  which  was  due  to  a  vassal  who  held 
a  fief.  Wars  were  frequent  among  the  feudal  lords, 
and  these  allodial  proprietors  were  often  the  victims 
of  oppression.  They  were  without  organization,  had 
no  superior,  and  were  at  the  mercy  of  their  more 
powerful  neighbors.  This  led  to  a  surrender  of  their 
tenures  to  the  lords,  to  whom  they  made  their  oath 
of  fealty  and  secured  protection.  This  absorption 
of  the  allodial  lands  was  general  in  Italy,  France, 
Germany,  and  England.  William,  the  Norman,  had 
witnessed  in  France  the  evil  effects  of  the  divided  al- 
legiance of  the  people.  The  vassal's  first  and  para- 
mount allegiance  was  to  his  lord,  and  in  cases  of  con- 
flict with  his  king,  the  vassal  was  true  to  his  im- 
mediate protector.  After  the  conquest,  William  im- 
posed new  conditions  upon  those  to  whom  he  gave 
the  lands  of  England.  The  vassal  took  a  double  oath, 
first  to  the  king  and  under  him  to  the  lord.  So  that 
Coke  could  say,  in  writing  of  English  tenures,  that 
"All  the  lands  and  tenements  in  England  in  the 
hands  of  subjects  are  holden  mediately  or  imme- 
diately of  the  king  ;  for  in  the  law  of  England  we 
have  not  properly  allodiam." 

§  84.  Wardship  and  marriage.— Some  of  the  inci- 
dents of  the  system,  as  it  existed  in  some  parts  of 
Germany  and  France  and  in  England,  bore  with  op- 
pressive weight  upon  the  vassals.  These  were  the 
incidents  of  wardship  and  marriage.  The  lord  was 
guardian  of  the  person  and  estate  of  the  infant  ten- 
ant during  minority,  and  the  profits  accruing  there- 
from added  greatly  to  the  lord's  revenues.     So,  be- 


62  ELEMENTARY  LAW.  §  85 

fore  a  female  ward  became  of  age,  the  lord  claimed 
and  asserted  the  right  of  tendering  her  a  husband. 
If  she  rejected  the  offer  she  forfeited  the  value  of  the 
marriage,  that  is,  as  much  as  any  one  would  give  to 
the  lord  for  permission  to  marry  her.  This  right 
was  extended  to  male  and  female  heirs,  and  also  to 
widows. 

§  85.  Local  courts. — The  grant  of  land  as  a  fief 
was  usually  accompanied  by  a  grant  of  jurisdiction, 
under  which  local  courts  were  established,  in  which 
legal  controversies  arising  among  the  subjects  living 
within  the  bounds  of  the  manor  were  adjudicated. 
These  manorial  courts  founded  by  the  Normans 
exist  under  different  names  in  England. 

§  86.  Homage  and  fealty. — Primarily,  the  feudal 
tenure  was  based  upon  the  obligation  or  duty  of  the 
vassal  to  render  military  service  to  his  lord.  When 
the  fief  was  granted,  the  vassal  made  homage  to  his 
lord  in  this  fashion  :  "  He  shall  be  ungirt  and  his 
head  uncovered,  and  his  lord  shall  sit  and  the  tenant 
shall  kneel  before  him  on  both  knees,  and  hold  his 
hands  jointly  between  the  hands  of  his  lord  and  shall 
say  thus:  I  become  your  man  from  this  day  for- 
ward, of  life  and  limb  and  of  earthly  worship,  and 
unto  you  shall  be  true  and  faithful,  and  bear  you 
faith  for  the  tenements  that  I  claim  to  hold  of  you, 
saving  the  faith  that  I  owe  to  our  sovereign  lord,  the 
king  ;  and  then  the  lord,  so  sitting,  shall  kiss  him." 
The  obligation  of  homage,  says  Fleta,  is  mutual, 
binding  the  lord  to  protection  of  the  vassal,  as  well 
as  the  vassal  to  fidelity.  Homage  was  done  without 
an  oath,  but  when  a  freeholder  did  fealty  to  his 
lord  it  was  required  that,  "  he  shall  hold  his  right 


§87  THE  FEUDAL  SYSTEM.  63 

hand  upon  a  book  and  shall  say  thus:  'Know  ye 
this,  my  lord,  that  I  shall  be  faithful  and  true  unto 
you,  and  faith  to  you  shall  bear  for  the  lands  which 
I  claim  to  hold  of  you,  and  that  I  shall  lawfully  do 
to  you  the  customs  and  services  which  I  ought  to  do 
atthe  terms  assigned,  so  help  me  God  and  His  saints/ 
and  he  shall  kiss  the  book.  But  he  shall  not  kneel 
when  he  maketh  the  fealty,  nor  shall  make  such 
humble  reverence  as  is  aforesaid  in  homage." 

§  87.  Military  service. — The  extent  of  military 
service  due  to  the  lord  from  his  tenant  or  vassal  was 
indeterminate  at  first,  but  afterwards,  as  the  vassal 
became  more  independent,  it  was  fixed  by  usage  or 
custom  at  forty  days  on  every  occasion  in  which  his 
lord  required  his  services.  Women  and  the  clergy 
were  obliged  to  send  substitutes.  Certain  public  offi- 
cers were  wholly  exempt  from  personal  military  serv- 
ice. The  other  duties  of  the  vassal,  as  Mr.  Hallam 
gives  them,  were  as  follows  :  "It  was  a  breach  of  faith 
to  divulge  the  lord's  counsel,  to  conceal  from  him 
the  machinations  of  others,  to  injure  his  person  or 
fortune,  or  to  violate  the  sanctity  of  his  roof  and  the 
honor  of  his  family.  In  battle  he  was  bound  to  lend 
his  horse  to  his  lord,  when  dismounted  ;  to  adhere 
to  his  side  while  fighting,  and  to  go  into  captivity 
as  a  hostage  for  him  when  taken.  His  attendance 
was  due  at  the  lord's  courts,  sometimes  to  witness 
and  sometimes  to  bear  a  part  in  the  administration 
of  justice." 

§  88.  Other  obligations  of  the  tenant. — "We  have 
mentioned  wardship  and  marriage  as  two  of  the  in- 
cidents of  the  relation  of  lord  and  tenant  which  were 
a  source  of  pecuniary  profit  to   the  lord.     His  reve- 


64  ELEMENTARY  LAW.  §  89 

nues  were  replenished  by  other  means.  Every  new 
entrant  upon  a  fief  paid  a  sum  of  money  which  was 
ealled  a  "  relief."  When  a  tenant  left  no  heir  or 
forfeited  his  estate  for  crime,  it  escheated  to  the 
lord.  When  a  tenant  sold  any  part  of  his  fief,  a  fine 
was  paid  for  the  permission  to  sell,  and  finally  there 
were  sums  paid  for  various  "  aids," — to  ransom  the 
lord  when  a  prisoner,  to  make  his  eldest  son  a 
knight,  to  marry  the  lord's  eldest  daughter  by  giv- 
ing her  a  portion.  The  amount  of  the  last  two  was 
fixed  by  act  of  parliament  in  time  of  Edward  III,  at 
twenty  shillings  each,  but  these  aids  were  wholly 
abolished  in  the  reign  of  Charles  II. 

§  89.  Domesday  Book. — King  William,  when  he 
felt  secure  in  his  possession  of  the  English  throne, 
held  a  council  to  inquire  into  the  state  of  the  nation 
and  by  his  order  the  Domesday  Book  was  compiled. 
This  book  contains  minute  and  accurate  surveys  of 
the  lands  of  the  kingdom.  The  work  was  committed 
to  five  justices  in  each  county,  in  the  year  1081,  and 
it  was  finished  in  five  years.  This  book,  or  books, 
for  it  consists  of  two  volumes,  is  preserved  in  the 
chapter  house  at  Westminster.  It  gave  the  king 
full  information  as  to  the  military  resources  of  the 
kingdom,  and  has  been  invaluable  to  the  English 
people  in  settling  disputed  boundary  lines. 

§  90.  Eseuag'e. — As  the  hereditary  character  of 
fiefs  became  established,  the  tenant  ceased  to  be  de- 
pendent and  subject  to  his  lord.  In  course  of  time, 
a  pecuniary  payment  became  the  sole  method  by 
which  the  tenant  discharged  his  obligations.  Henry 
II  found  it  inconvenient  to  keep  the  military  force 
of  the  kingdom  in  a  state  of  efficiency,  and  he  dis- 


§  91  THE  FEUDAL  SYSTEM.  »;.", 

pensed  with  the  personal  military  services  of  the 
vassals,  and  substituted  in  lieu  thereof  the  payment 
of  a  fixed  sum  called  "escuage,"  which   is  simply 

another  name  for  taxes,  as  we  now  know  them. 
§91.    Changes   in   feudal   system. — The    prai 

of  subdivision  and  sale  of  feuds  worked  great 
changes  in  the  rules  of  tenure  and  succession.  This 
practice  became  so  common  that  it  caused  alarm,  and 
by  a  provision  of  the  charter  of  Henry  III,  subin- 
feudation was  restricted,  and  in  the  time  of  Edward  I 
it  was  forbidden.  As  a  substitute,  lands  were  al- 
lowed to  be  sold,  but  the  purchaser  took  and  held 
title  just  as  his  grantor  did.  This  applied  to  sales  of 
a  man's  entire  interest  in  land,  and  was  held  not  to 
prohibit  the  voluntary  alienation  of  land  by  persons 
during  their  lifetime.  Under  the  feudal  system, 
lands  could  not  be  sold  for  debt.  By  degrees,  how- 
ever, the  power  of  the  creditor  over  the  debtor's  land 
was  increased,  until  by  the  modern  statutes  of  bank- 
ruptcy in  England  the  whole  of  a  bankrupt  debtor's 
lands  have  become  absolutely  salable  for  the  payment 
of  his  debts.  So  by  a  statute  (3  and  4  Wm.  IV, 
c.  104),  all  a  decease!  person's  interest  in  land  of 
whatever  kind,  not  charged  by  his  will  with  pay- 
ment of  debts,  whether  he  was  a  trader  within  the 
bankrupt  laws  or  not,  constitutes  assets  to  be  admin- 
istered in  equity  for  the  payment  of  debts. 

§  92.  Abolition  of  the  system. — In  spite  of  these 
changes  in  some  parts  of  the  ancient  feudalism, 
many  of  its  substantial  provisions  remained  in  force 
and  it  was  not  until  after  the  civil  war,  which  begau 
in  1641,  that  the  profits  of  wardship  and  marriage, 
5 


66  ELEMENTARY  LAW.  §  92 

and  other  feudal  prerogatives,  were  swept  away.  The 
court  of  wards  was  discontinued  in  1645,  and  it  was 
further  enacted  that  all  wardships,  liveries,  primer 
seizins,  values,  forfeitures  of  marriage,  etc.,  by  rea- 
son of  any  tenure  of  the  king  or  others,  should  be 
totally  taken  away,  and  that  all  fines  for  alienation, 
tenures  by  homage,  knight-service  and  escuage, 
etc.,  were  abolished.  Of  which  statute  Blackstone 
says:  "It  was  a  greater  acquisition  to  the  civil 
property  of  this  kingdom  than  even  Magna  Charta 
itself;  since  that  only  pruned  the  luxuriances  that 
had  grown  out  of  the  military  tenures,  and  thereby 
preserved  them  in  vigor;  but  the  statute  of  King 
Charles  extirpated  the  whole,  and  demolished  both 
root  and  branches.     (12  Charles  II,  c.  24.) 


CHAPTER  X. 

ANCIENT  TENURES. 

§  93.  Tenure. — Before  quitting  this  branch  of  the 
subject,  and  proceeding  to  a  consideration  of  modern 
English  tenures,  and  the  law  of  tenures  as  it  prevails 
in  the  United  States,  let  us  by  way  of  summary  or 
recapitulation  give  the  nature  and  definitions  of  the 
ancient  English  tenures,  as  they  existed  under  the 
laws  of  feudalism. 

§  94.  All  real  property  was  holden  of  some  su- 
perior, in  consideration  of  certain  services  to  be  ren- 
dered to  the  lord  by  the  tenant  or  possessor  of  the 
property.  The  thing  holden  was  a  tenement.  The 
possessor  was  a  tenant.  The  manner  of  possession 
was  tenure. 

§  95.  Lord  paramount. — The  king,  because  all 
land  was  holden  mediately  or  immediately  of  him, 
was  lord  paramount. 

§96.  Middle  lords  and  tenant  paravail. — Persons 
who  held  immediately  of  the  king,  and  granted  por- 
tion of  their  lands  to  others,  were  called  middle 
lords.  The  grantee  of  the  middle  lord  was  called 
tenant  paravail,  or  the  lowest  tenant. 

§97.  Free  and  base  tenure. — These  tenures  were 
held  by  four  different  kinds  of  service.  As  to  quality 
they  were  free  or  base,  as  to  quantity  certain  or  un- 
certain.    Free  services  were  such  as  were  not  unbe- 

(67) 


68  ELEMENTARY  LAW.  §  98 

coming  to  a  soldier,  such  as  fighting  for  his  lord,  or 
paying  a  sum  of  money.  Base  services  were  servile, 
plowing,  making  hedges  and  the  like.  Certain  serv- 
ices were  fixed  in  quantity,  as  to  days  of  military 
service  or  payment  of  a  fixed  sum.  Uncertain  serv- 
ices depended  on  unknown  contingencies. 

§  98.  Frank-tenement  and  villenage. — From  these 
services  arose  four  kinds  of  tenure.  Tenements  were 
of  two  kinds,  frank-tenement  and  villenage.  Some 
frank-tenements  were  held  in  consideration  of  hom- 
age and  knight  service  ;  others  in  free-socage,  with, 
the  service  of  fealty  only.  Of  villenage,  there  was 
pure  villenage  and  privileged  villenage.  A  tenant 
by  pure  villenage  was  bound  to  do  whatever  was  com- 
manded him,  and  he  was  bound  to  an  uncertain  serv- 
ice. A  tenant  by  villein  socage  was  bound  to  do 
villein  service,  but  it  was  certain. 

§  99.  Knight  service. — Of  these,  knight  service 
was  the  most  honorable.  For  a  knight's  fee,  esti- 
mated at  twelve  plowlands  (about  one  hundred 
and  twenty  acres)  each  tenant  must  attend  his  lord 
to  the  wars  for  forty  days  in  every  year,  if  called 
upon  ;  if  he  held  less  than  a  knight's  fee,  his  service 
was  to  be  in  proportion.  These  were  the  original 
services,  and  the  other  incidents  grew  up  by  a  series 
of  fraudulent  impositions. 

§  100.  Aids. — Aids  were  at  first  mere  benevolences 
granted  by  the  tenant  to  his  lord  in  time  of  diffi- 
culty and  distress,  but  in  time  they  grew  to  be  matters 
of  right.  There  were  three,  viz.,  to  ransom  the  lord, 
to  make  his  eldest  son  a  knight,  and  to  marry  his 
eldest  daughter. 

§  101.    .Relief. — Relief  was  a  fine  or  sum  of  money 


§102  ANCIENT  TENUE  (59 

exacted  by  the  lord  from  the  new  tenant  when  the 
estate  lapsed  by  the  death  of  a  former  tenant. 

§  102.  Primer  seizin. — Primer  seizin  was  a  sum 
of  money  equal  to  a  year's  profits  of  the  lands  from 
the  heirs  of  a  tenant  in  capite  (one  holding  im- 
mediately of  the  king),  which  the  king  exacted. 

§  103.  Wardship. — Wardship  gave  the  lord  the 
custody  of  the  lands  and  person  of  the  tenant  un- 
der age  without  being  compelled  to  account  for 
profits. 

§  104.  Marriage. — Marriage  was  the  right  of  the 
lord  to  select  a  husband  or  wife  for  his  ward,  and  if 
his  selection  was  rejected,  he  could  recover  whatever  a 
jury  would  assess  as  damages,  or  as  much  as  anyone 
would  bona  fide  give  for  the  alliance. 

§  105.  Fines. — Fine  was  a  sum  exacted  from  a 
tenant  for  a  license  to  sell  part  of  his  holding. 

§  106.  Escheat. — Escheat  was  the  resumption  of 
the  fee  by  the  lord,  when  issue  failed  or  where  the 
estate  was  lost  by  the  crime  of   the  tenant. 

Brave  and  spirited  people  became  restive  under 
these  onerous  burdens,  and  but  for  the  statute  of 
Charles  II,  above  quoted,  which  abolished  these  ex- 
actions,the  monarchy  itself  might  have  been  sub- 
verted. 


CHAPTER  XI. 

MODERN    TENURES. 

§  107.  Influence  of  feudal  system. — Judge  Cooley, 
speaking  of  tenures  in  America,  says:  "Although 
the  feudal  system  never  obtained  much  foothold  in 
this  country,  there  are  many  things  in  our  law  of 
real  estate  which  require  for  their  understanding  that 
we  bear  in  mind  the  fact  that  the  American  system 
is  based  upon  the  common  law  of  England,  and  that 
that  law  grew  up  while  the  feudal  system  was  in 
force.  As  lands  in  England  were  held  under  that 
system,  and  its  maxims  thoroughly  pervaded  the  law 
of  real  estate,  it  was  not  to  be  expected  that  when 
grants  of  land  were  made  in  this  country  under  cir- 
cumstances unknown  in  England,  a  new  system  of 
law  with  new  terms  and  maxims  would  at  once  spring 
into  existence  to  provide  for  the  new  condition  of 
things  and  bearing  no  trace  of  the  system  which  it 
supplanted." 

§  108.  As  a  matter  of  fact,  however,  the  early 
grants  in  America  were  made  with  a  reference  to  a 
continuation  of  something  like  a  feudal  tenure,  and 
many  incidents  of  that  system  attached  themselves 
to  these  grants.  The  tenure  prescribed  was  tenure 
in  free  and  common  socage,  to  be  held  of  the  king, 
as  of  some  manor  in  England.  When  the  colonies 
threw  off  allegiance  to  the  crown,  and  became  inde- 

(70) 


§109  MODERN  TENURES.  71 

pendent  states,  each  of  tliem  succeeded  to  all  the 
rights  of  the  crown  within  its  limits,  while  the  United 
States  as  a  sovereignty  succeeded  to  all  the  right-  of 
the  crown  to  unoccupied  territory  not  within  the 
limits  of  any  of  the  states  and  not  previously  con- 
veyed. 

§  109.  Revival  of  allodial  tenure. — Being  thus 
possessed  of  the  vacant  lands,  the  United  States  and 
the  several  individual  states  have  proceeded  to  make 
sale  and  conveyance  thereof  and  to  give  titles  which, 
though  called  fees,  are  in  truth  allodial.  At  the 
same  time  the  states  by  statutory  and  constitutional 
provisions  have  gradually  abolished  such  of  the  feudal 
incidents  as  still  attached  to  the  estates  previously 
granted  by  the  crown,  until,  as  Chancellor  Kent 
says,  3  Com.  513,  "By  one  of  those  singular  revolu- 
tions incident  to  human  affairs,  allodial  estates  once 
universal  in  Europe,  and  then  almost  universally 
exchanged  for  feudal  tenures,  have  now  after  the 
lapse  of  many  centuries  regained  their  primitive  es- 
timation in  the  minds  of  freemen." 

§  110.  In  America  as  in  England  the  sovereignty 
is  recognized  as  the  source  of  all  title,  and  the  state 
succeeds  thereto  in  default  of  heirs;  but  this  right  is 
not  peculiar  to  the  feudal  system;  neither  is  eminent 
domain,  which  is  sometimes  referred  to  as  a  remain- 
ing incident  of  the  feudal  system. 

§  111.  Estates. — An  estate  inlands,  tenements  and 
hereditaments  signifies  such  interest  as  the  tenant 
has  therein.  An  estate  is  either  for  an  uncertain 
period,  as  for  life,  for  a  certain  period  of  year-,  or 
unlimited,  as  when  it  is  vested  in  a  man  and  his 
heirs  forever,  without  mentioning  what  heirs.     This 


72  ELEMENTARY  LAW.  §  H2 

last  is  an  estate  in  fee-simple,  which  is  the  largest 
estate  a  man  can  have  in  lands. 

§  112.  Fee-simple. — The  fee-simple,  or  inheritance 
of  lands,  is  generally  vested  in  some  person  or  other. 
Inferior  estates  may  be  carved  out  of  it.  One  may 
have  the  fee-simple,  another  may  have  a  term  for 
years,  another  may  have  a  life-estate,  another  may 
have  the  right  of  possession,  another  may  be  in  act- 
ual possession,  of  the  same  land. 

§113.  Fee-simple  in  abeyance. — A  fee-simple  may 
be  in  abeyance,  according  to  Blackstone,  as  where 
there  is  a  grant  to  John  for  life,  and  afterwards  to 
the  heirs  of  Richard.  The  fee  in  such  can  not  vest 
in  the  heirs  of  Richard  till  his  death,  because  no  one 
can  be  an  heir  of  the  living,  and  John  has  plainly 
a  life-estate  only.  The  fee,  therefore,  is  in  abej^ance 
while  Richard  lives.  The  inconvenience  resulting 
from  this  notion  has  led  some  learned  writers  to  re- 
pudiate it.  Kent  says  that  though  the  good  sense 
of  the  thing  and  the  weight  of  liberal  doctrine  are 
strongly  opposed  to  the  ancient  notion  of  an  abey- 
ance, the  technical  rule  is  that  livery  of  seizin  takes 
the  reversion  of  the  inheritance  from  the  grantor, 
and  leaves  him  no  tangible  or  disposable  interest. 
He  cites  Preston  on  Estates  as  insisting  that  an 
estate  in  freehold,  depending  on  another  estate  of 
freehold  and  limited  on  a  contingency,  must  be  in 
abeyance.. 

§  114.  Use  of  word  "heirs." — At  common  law,  where 
it  was  intended  to  conve}T  a  fee-simple  estate  by  deed, 
the  word  "heirs"  was  essential.  In  many  of  theUnited 
States  this  strict  rule  has  been  abrogated  by  statute. 
In  some  states  a  form  of  deed  is  prescribed  by  statute, 


§115  MODERN  TENURES.  '73 

which  prescribes  what  the  effect  may  be.  The  short 
form  in  Indiana,  which  is  in  substance,  "A  con- 
veys and  warrants  to  B  "  certain  land,  describing  it, 
is  held  to  be  sufficient  to  convey  the  land,  with  the 
appurtenances  and  hereditaments  to  the  grantee,  his 
heirs  and  assigns  with  covenants  of  seizin  and 
warranty,  as  fully  as  if  these  words  and  the  full  cov- 
enants were  written  in  the  deed.  [A  government 
grant  in  any  form  the  legislature  may  prescribe  will 
take  effect  according  to  the  legislative  intent.  A 
grant  to  a  sovereignty  requires  no  words  of  inherit- 
ance. 'The  strict  rule  requiring  the  use  of  the  word 
"  heirs,"  to  create  or  convey  a  fee,  has  no  applica- 
tion to  wills.  Where  the  testator's  intention  to 
create  an  estate  of  inheritance  is  manifest  from  the 
whole  will,  it  will  be  so  construed. )Some  states  have 
gone  so  far  as  to  enact  by  statute  that  every  devise 
of  land  shall  be  construed  to  convey  a  fee-simple, 
unless  it  appears  by  express  words  that  a  less  estate 
was  intended. 

In  suits  to  compel  the  specific  performance  of 
agreements  to  convey  land  equity  will  sustain  the 
right  of  a  party  asking  a  conveyance  in  fee  where  it 
appears  to  have  been  the  intention  of  the  parties  to 
contract  for  a  fee. 

§  115.  Estates  for  life. — Estates  for  life  are  next 
in  importance.  These  outrank  estates  for  hundreds 
of  years,  because  it  is  said  that  no  one  knows  how 
long  a  man  may  live.  Where  an  estate  for  life  is 
carved  out  of  a  fee  the  land  comes  back  to  the  grantor 
when  the  estate  for  life  ends,  and  that  which  the 
grantor  has  is  an  estate  in  reversion;  if,  however,  a 
grant  is  made  for  life  to  one,  and  at  his  death  to  an- 


74  ELEMENTARY  LAW.  §  116 

other  and  his  heirs,  this  latter  takes  a_remalri (I er _jn_ 
fee.  An  estate  for  life  may  be  for  the  life  of  the 
grantee  or  for  the  life  of  another.  An  estate  for 
life  in  this  country  terminates  with  the  natural  death 
of  the  person.  Civil  death,  as  it  is  called  in  England, 
is  not  now  known  in  this  country.  When  one  en- 
tered a  monastery  he  was  civilly  dead,  and  in  this 
country  under  the  first  general  bankrupt  law  the 
bankrupt  was  regarded  as  civilly  dead. 

§  116.  Rights  of  life  tenant. — The  life  tenant  has 
certain  rights  determining  the  use  he  may  make  of 
the  property.  He  may  take  such  wood  and  timber 
as  may  be  necessary  to  keep  up  the  buildings  and  in- 
closures  and  to  supply  him  with  fuel.  He  has  no 
right  to  cut  down  timber  and  sell  it  for  mere  profit, 
but  if  there  is  a  disproportion  of  woodland  to  arable 
land  he  may  make  a  clearing;  that  is,  he  may  re- 
move the  growing  timber  and  dispose  of  the  same  so 
as  to  increase  the  arable  land.  The  general  rule  is 
that  he  is  entitled  to  the  temporary  use  of  the  estate 
as  he  finds  it,  but  in  the  United  States,  whether  cut- 
ting any  kind  of  trees  in  any  particular  case  is  waste 
seems  to  depend  upon  the  question  whether  the  act 
is  such  as  a  prudent  farmer  would  do  with  his  own 
land,  having  regard  to  the  land  as  an  inheritance, 
and  whether  the  doing  of  it  would  diminish  the  value 
of  the  land  as  an  estate. 

§  117.  Emblements. — On  the  death  of  a  life  ten- 
ant his  representatives  have  a  right  to  the  growing 
crops,  upon  which  the  tenant  has  bestowed  his  labor. 
In  fact,  whenever  one  holds  lands  for  an  uncertain 
term,  and  dies,  the  emblements,  or  growing  crops, 
which  are  the  fruit  of  his  labor,   go   to   his  repre- 


§118  MODERN  TENURES.  75 

sentatives.  The  mere  preparation  of  the  land  for 
sowing  will  not  give  such  right  unless  the  tenant  has 
planted. 

§  118.  Taxes  and  interest. — The  life  tenant  who 
receives  the  profits  of  the  land  must  keep  down  the 
taxes,  and  if  when  he  comes  to  the  estate  it  is  incum- 
bered, he  must  pay  the  interest  on  the  incumbrance, 
though  he  is  not  bound  to  discharge  the  principal. 

§  119.  Waste. — If  a  life  tenant  commits  or  per- 
mits waste,  he  may  be  enjoined  at  the  suit  of  the  re- 
mainderman or  reversioner.  If  he  permits  taxes  to 
become  delinquent,  so  that  the  estate  is  in  danger  of 
being  sold,  the  courts  will  sometimes,  upon  a  proper 
showing,  decree  a  forfeiture  of  the  life-estate. 

§  120.  Estates  for  years. — An  estate  for  years  is 
where  one  is  entitled  to  the  possession  and  profits  of 
land  for  a  certain  period.  This  estate  is  always  cre- 
ated by  the  acts  of  the  parties.  The  instrument  cre- 
ating it  is  termed  a  lease,  and  the  parties  are  land- 
lord and  tenant.  The  execution  and  delivery  of  the 
lease  perfects  the  title  of  the  tenant.  Sometimes 
these  leases  are  practically  interminable,  though  in 
form  and  theory  they  are  for  a  fixed  term,  as  where 
one  leases  lands  for  a  term  of  ninety-nine  years, 
renewable  forever.  It  is  quite  common  for  railway 
companies  to  lease  their  lines  to  other  companies  for 
a  period  of  nine  hundred  and  ninety-nine  years,  and 
yet  in  law  such  estates  and  terms  are  deemed  to  be  of 
less  dignity  than  a  life-estate.  In  some  particulars 
the  rights  of  the  tenant  for  years  are  the  same  as 
those  which  belong  to  the  tenant  for  life.  The  ten- 
ant for  years  has  no  right  to  emblements,  for  the  term 
of  his  tenancy  is  fixed,  but  he  may  take  timber  suf- 


76  ELEMENTARY  LAW.  §  121 

ficient  for  fuel  and  to  keep  up  the  repairs  of  build- 
ings and  enclosures,  and  he  may  sublet  the  premises, 
unless  that  right  is  cut  off  or  restricted  by  the  terms 
of  the  lease,  and  he  is  liable  in  damages  for  waste, 
and  may  be  enjoined  in  equity  from  committing  or 
permitting  it. 

§  121.  Rent. — Rent,  according  to  Blackstone,  is 
"a  certain  profit  arising  yearly  out  of  lands  and  ten- 
ements corporeal,"  or  it  is  a  periodical  compensation 
in  money  or  otherwise  agreed  to  be  given  by  the  ten- 
ant to  the  landlord  for  the  use  of  realty,  the  payment 
of  which  may  be  enforced  like  any  other  demand. 
One  occupying  the  land  of  another,  where  there  is  n_o 
contract  to  pay  a  specific  rent,  is  liable  not  for  rent 
as  such,  but  for  the  use  and  occupation  of  the  prem- 
ises, the  amount  to  be  reasonable,  and  in  cases  of 
dispute  to  be  fixed  by  the  jury. 

If  a  tenant  is  evicted  by  a  title  superior  to  that  of 
his  landlord,  the  obligation  to  pay  rent  ceases  ;  but 
so  long  as  he  remains  in  possession,  neither  the  right 
of  the  landlord  to  demand  rent  nor  the  landlord's 
title  can  be  disputed  by  the  tenant. 

A  destruction  of  the  premises  by  some  inevitable 
accident  will  not  exonerate  the  tenant  from  liability 
to  pay  rent  for  the  unexpired  term  unless  the  lease 
contains  a  stipulation  to  that  effect.  There  are  ex- 
ceptions to  this  rule,  as  where  one  rents  apartments 
in  a  block  and  the  whole  structure  is  destroyed,  the 
obligation  to  pay  rent  ceases.  And  it  has  been  held 
that  where  the  premises  are  destroyed  after  the  exe- 
cution of  a  lease,  and  before  the  lessee  has  taken  pos- 
session, the  tenant  is  not  liable,  and  so  a  contract 
for  a  term  to  begin  in   the  future  does  not  bind  tho 


§  122  MODERN  TENURES.  77 

tenant  to  pay  rent,  if  before  the  beginning  of  the 
term  the  premises  are  destroyed.  And  in  case  of  a 
partial  destruction  of  a  building,  if  the  insurance 
company  takes  possession  to  restore  the  premises, 
the  tenant  is  not  liable  for  rent,  while  the  insurance 
company  occupies  the  building  for  that  purpose. 

Where  a  lease  provides  for  a  forfeiture  for  non- 
payment of  rent  when  due,  a  tender  or  readiness  to 
pay  on  the  premises  at  anytime  before  sunset  on  the 
day  stipulated  will  be  sufficient.  If  a  different  place 
for  payment  is  designated  in  the  lease,  the  payment 
or  tender  must  be  made  there. 

§  122.  Duration  of  tenancy. — In  ascertaining  the 
time  of  the  beginning  and  ending  of  a  term  where 
the  words  "month"  and  "year"  occur  in  leases  the 
Gregorian  calendar  is  used,  by  which  the  beginning 
of  the  year  is  January  1.  Prior  to  the  year  1752  the 
Julian  calendar,  fixing  the  beginning  of  the  year  on 
the  25th  of  March,  was  used.  When  the  word  year 
occurs  in  a  statute  or  contract  it  is  to  be  understood 
as  meaning  the  whole  twelve  months  according  to  the 
calendar,  unless  a  contrary  intention  is  clearly  ex- 
pressed. The  period  of  time  is  always  to  be  settled 
according  to  the  intention  of  the  parties.  At  com- 
mon law  a  month  meant  a  lunar  month,  but  now  it 
is  held  to  mean  a  calendar  month,  both  in  England 
and  the  United  States.  A  natural  day  is  full 
twenty-four  hours,  and  in  legal  contemplation  the 
legal  day  is  without  fractions,  but  if  two  acts  are 
performed  on  the  same  day  and  it  is  important  which 
was  first  in  time,  evidence  will  be  heard  to  fix  the 
exact  hour  and  minute.  This  becomes  important  in 
disputes  as  to  the  priority  of  liens,  deeds,  time  of  re- 


78  ELEMENTARY  LAW.  §  123 

cording  and  the  like.  In  computing  time  from  the 
day  of  the  date,  or  from  a  certain  act  or  event,  the 
day  of  the  date  or  act  is  to  be  excluded,  unless  it  is 
clear  that  the  parties  to  the  instrument  had  a  differ- 
ent intent.  A  week  means  a  full  week  of  seven  days, 
and  if  by  statute  or  rule  of  court  a  notice  is  to  be 
published  for  a  certain  number  of  weeks,  the  publi- 
cation is  not  completed  until  the  number  of  weeks 
has  fully  expired  from  the  date  of  the  first  publica- 
tion. Thus,  if  the  publication  is  to  be  once  in  each 
week  for  six  successive  weeks,  and  the  first  publica- 
tion is  on  Tuesday,  the  publication  is  not  completed 
without  including  Monday  of  the  seventh  week,  which 
is  the  forty-second  day,  and  whatever  was  to  be  done 
dependent  on  such  publication  could  not  be  done 
earlier  than  Tuesday  of  that  week.  When  the  day 
for  the  performance  of  an  actor  the  payment  of  money 
falls  on  a  legal  holiday, the  next  business  day  follow- 
ing is  the  one  on  which  performance  or  payment  is 
to  be  made  ;  except,  however,  that  where  days  of 
grace  are  allowed,  and  the  last  day  of  grace  falls  on 
a  legal  holiday,  the  next  preceding  business  day  is 
the  day  for  payment.  The  computation  of  time  and 
the  meaning  to  be  given  to  terms  such  as  "month," 
"year,"  etc.,  are  often  the  subject  of  statutory  regu- 
lation, and  wrhere  there  is  a  conflict,  statute  law  su- 
persedes and  displaces  the  common  law. 

§  123.  Distress. — Distress  was  a  right  which  the 
landlord  had  at  common  law  to  seize  and  hold  the 
tenant's  personal  property  to  enforce  the  payment 
of  rent.  It  became  unpopular  in  the  United  States, 
has  been  abolished  in  some  of  them  by  statute, 
and  has  been  superseded  by  the  ordinary  remedies 


§124  MODERN  TENURES.  79 

for  the  recovery  of  money  due.  Some  states  give  the 
landlord  a  first  lien  upon  all  crops  for  the  security 
of  his  rent. 

§  124.  Apportionment  of  rent. — During  the  exist- 
ence of  the  tenancy  the  landlord  or  reversioner  may 
sell  part  of  the  leased  premises.  In  such  cases  the 
rent  is  apportioned  and  paid  to  the  new  owners  in 
proportion  to  the  value  of  the  land. 

§  125.  Estates  at  will. — An  estate  at  will  was  for- 
merly when  a  tenant  occupied  at  the  mere  pleasure 
of  him  who  had  the  next  estate.  The  landlord  could 
terminate  it  any  moment  without  notice.  This 
harsh  rule  was  modified  at  first,  so  that  an  estate  at 
will  was  equally  at  the  will  of  both  parties,  and  later 
it  became  settled  that  unless  there  was  an  express 
agreement  to  hold  at  will,  such  tenancies  should  be 
construed  as  estates  from  year  to  year.  These 
changes  have  virtually  abolished  the  old  tenancy  ;it 
will,  and  now  such  estates  are  determinable  by 
notices  to  quit,  and  the  form  and  length  of  time 
for  giving  notice  is  regulated  by  statute.  Tenants 
holding  such  estates  are  entitled  to  emblements, 
owing  to  the  uncertainty  of  their  tenure. 

§  126.  Estates  at  sufferance. — An  estate  at  suffer- 
ance is  where  one  who  comes  lawfully  into  possession 
of  land  holds  over  after  his  interest  is  determined. 
And  while  he  is  not  liable  strictly  for  rent  as  such, 
he  is  liable  for  such  sum  as  may  be  reasonable  in  an 
action  for  use  and  occupation.  In  some  states,  a 
penalty  in  addition  to  this  is  awarded  against  one 
who  unlawfully  deprives  the  owner  of  the  use  of  his 
land . 

§  127.    Base    fee. — A  base   or   qualified  estate  in 


80  ELEMENTARY  LAW.  §  128 

fee  is  an  interest  which  may  continue  forever,  but 
may  be  determined  without  the  aid  of  a  conveyance 
by  some  act  or  event  circumscribing  its  duration. 
A  limitation  to  a  man  and  his  heirs,  so  long  as  he 
shall  have  heirs  of  his  body,  or  so  long  as  St.  Paul's 
church  shall  stand,  are  examples  of  this  sort  of  an  es- 
tate. The  owner  of  such  an  estate  has  all  the  rights 
of  an  owner  of  a  fee-simple,  until  his  estate  is  de- 
termined. Such  estates  are  called  base  because  their 
duration  depends  upon  the  occurrence  of  collateral 
circumstances  which  qualify  and  debase  the  purity 
of  the  fee. 

§  128.  Conditional  fee. — A  conditional  fee  is  one 
which  restrains  the  fee  to  some  particular  heirs  ex- 
clusive of  others,  as  to  the  heirs  of  a  man's  body, 
or  to  the  heirs  male  of  his  body.  At  common  law 
this  was  construed  to  be  a  fee-simple  on  condition  the 
grantee  had  the  heirs  prescribed.  If  he  died  with- 
out such  heirs  the  estate  reverted  to  the  grantor.  If 
he  had  such  heirs  the  fee  became  absolute  in  him, 
and  he  could  sell  his  estate  and  bar  his  own  issue 
and  prevent  a  reverter.  This  right  of  the  grantee 
was  cut  off  by  the  statute  of  Edward  I,  which  pro- 
hibited a  sale  by  the  grantee,  to  the  detriment  of  his 
issue  and  the  grantee's  reversioner. 

§  129.  Estates  tail. — This  statute  converted  what 
before  had  been  a  fee-simple  estate  into  an  estate  in 
fee  tail.  This  restraint  upon  the  power  of  alienation 
fettered  inheritances  and  created  perpetuities,  which 
were  condemned  by  Bacon  and  Coke  and  other  writ- 
ers. The  landed  aristocracy  opposed  all  attempts  to 
facilitate  sales  of  land,  but  the  growing  spirit  of  com- 
merce and  industr}',  foiled  by  the  legislature,  found 


§130  MODERN  TENURES.  81 

expression  in  a  species  of  judicial  legislation,  by 
which  the  fiction  cf  a  common  recovery  was  allowed 
to  cut  off  the  entail.  Common  recoveries  were  iieti- 
tious  suits,  in  the  nature  of  pious  frauds,  allowed  by 
the  courts,  the  object  of  which  was  to  get  rid  of  the 
mischievous  consequences  of  the  statute  of  Edward  I . 
If  the  tenant  wished  to  have  his  estate  tail  con- 
verted into  an  absolute  fee,  he  procured  himself  to 
be  sued  by  a  fictitious  person,  who  claimed  that  the 
tenant  had  no  right  to  the  land.  The  parties  to 
the  suit,  as  the  made-up  record  would  show,  then 
compromised  the  case  and  a  judgment  was  entered, 
the  result  of  which  was  that  what  was  formerly  a 
fee  tail  estate  was  converted  into  an  absolute  fee 
with  all  its  incidents.  To  such  awkward  shifts, 
such  subtle  refinements,  says  Blackstone,  were  our 
ancestors  obliged  to  have  recourse  in  order  to  get 
the  better  of  that  stubborn  statute  of  Edward  I. 
The  design  for  which  these  contrivances  were  set 
on  foot  was  certainly  laudable,  the  unriveting  the 
fetters  of  estates  tail,  which  were  attended  with  a 
legion  of  mischiefs  to  the  commonwealth,  but  while 
we  applaud  the  end  we  can  not  admire  the  m< 

§  130.  Estates  in  fee  tail  with  all  their  inconveni- 
ences existed  in  this  country  before  the  Revolution. 
They  have  now  become  obsolete  from  disuse  or  have 
been  abolished  or  modified  by  the  legislatures  of  the 
different  states.  The  general  tendency  of  judicial 
decision  as  well  as  legislation  in  this  country  has 
been  in  the  direction  of  removing  all  limitations 
upon  the  power  of  sale  of  real  estate,  and  prevent- 
ing perpetuities. 
6 


82  ELEMENTARY  LAW.  §  131 

§  131.  Tenant  by  the  curtesy. — Where  a  man  mar- 
ries a  woman  who  is  seized  during  marriage  of  an 
estate  of  inheritance,  and  has  by  her  issue  born  alive 
capable  of  inheriting  the  estate,  and  the  wife  dies  be- 
fore the  husband,  he  takes  an  estate  for  life.  This 
is  sometimes  called  tenancy  by  the  curtesy  of  Eng- 
land, though  the  same  estate  existed  in  ancient  times 
in  other  countries.  In  this  country  the  rule  prevails 
in  all  the  states  where  that  kind  of  estate  has  not 
been  abolished  by  statute.  Though  it  is  held  that  the 
wife's  dower  is  lost  by  her  adultery,  no  such  conduct 
on  the  part  of  the  husband  will  work  a  forfeiture  of 
the  curtesy. 

§  132.  Dower. — Do~rer  exists  where  a  man  seized  of 
an  estate  of  inheritance  dies  in  the  lifetime  of  his  wife. 
By  the  common  law  she  was  entitled  in  that  case  to 
be  endowed  of  a  third  of  the  estate  for  life.  At  first 
it  was  limited  to  lands  held  by  the  husband  at  the 
time  of  the  marriage,  but  by  Magna  Charta  it  was  ex- 
•tended  to  all  lands,  of  which  the  husband  was  seized 
during  coverture.  This  right  or  estate  of  dower  exists 
in  all  of  the  states  where  it  has  not  been  modified  or 
changed  by  statute.  Dower  can  not  be  claimed  as 
against  a  mortgage  given  by  the  husband  for  un- 
paid purchase-money.  Nor  is  it  necessary  for  a 
wife  to  join  with  her  husband  in  a  mortgage  secur- 
ing the  purchase-money.  If  the  wife  unites  with 
her  husband  in  conveying  his  land,  releasing  her 
dower  therein,  her  right  is  extinguished.  If  a  wife 
joins  in  a  mortgage  with  her  husband,  who  dies, 
and  upon  foreclosure  a  surplus  above  the  mort- 
gage debt  is  realized,  she  may  have  dower  in  such 
surplus,  though  the  husband  may  have  released  the 


§133  MODERN  TENURES.  S3 

equity  of  redemption.  Dower  may  be  barred  in 
various  ways,  though  the  husband  by  his  act  alone, 
without  the  wife's  assent,  can  not  bar  it.  It  may 
be  barred  by  deed,  by  the  adultery  of  the  wile, 
by  divorce,  by  jointure,  which  is  a  joint  estate 
tied  upon  husband  and  wife  by  which  the  whole 
estate  goes  to  her  on  his  death,  by  an  antenuptial 
contract  in  which  in  lieu  of  dower  a  sum  of  money 
or  something  else  is  agreed  to  be  taken  in  lieu  of 
dower,  by  a  bequest  in  lieu  of  dower,  if  the  widow 
elects  to  take  under  the  will. 

§  133.  Assignment  of  dower. — The  widow's  dower 
may  be  set  off  or  assigned  by  agreement  with  the 
heirs,  or  by  an  amicable  partition,  or  by  an  adver- 
sary proceeding  in  which  the  court  will  see  that  she 
gets  her  equitable  one-third  of  the  real  estate,  to 
which  her  right  of  dower  has  attached. 

§  134.  Estates  upon  condition. — Estates  upon  con- 
dition are  such  as  have  a  qualification  annexed  to 
them  by  which  they  may  upon  the  happening  of  a 
particular  event  be  created,  enlarged  or  destroyed. 
They  are  divided  into  estates  upon  conditions  im- 
plied in  law,  and  estates  upon  conditions  express  or 
in  deed. 

§  135.  Estates  upon  condition  implied. — A  tenant 
for  life  for  years  is  under  an  implied  obligation  to 
refrain  from  waste  or  any  fraudulent  or  wrongful 
act  which  would  injure  the  freehold.  Fur  willful  mis- 
conduct of  this  sort,  the  estate  may  be  forfeited.  So 
a  grant  to  a  man  of  an  office  has  the  implied  condi- 
tion annexed  to  it  that  he  will  perform  its  duties.  A 
corporation  holds  a  franchise  under  the  implied 
condition    that    it  will  fulfill  its  duties  to  the  pub- 


84  ELEMENTARY  LAW.  §  136 

lie,  and  a  violation  of  its  duties  by  non-user  or 
misuse  will  work  a  forfeiture  of  the  estate.  It  is  to 
be  here  remarked,  however,  that  it  is  for  the  state 
alone,  and  not  for  a  private  citizen  to  institute  and 
cany  on  proceedings  for  forfeiture  of  corporate  fran- 
chises. The  state  may  waive  a  condition  broken  as 
an  individual  may. 

§  136.  Estates  upon  condition  expressed. — Where 
an  estate  is  granted  in  fee-simple  or  otherwise,  with 
an  express  qualification  annexed  whereby  the  estate 
shall  commence,  be  enlarged  or  defeated  upon  per- 
formance or  breach  of  such  qualification  or  condi- 
tion, it  is  an  estate  upon  condition  expressed.  Con- 
ditions are  either  precedent  or  subsequent.  Prece- 
dent conditions  must  happen  or  be  performed  before 
the  estate  vests.  Subsequent  conditions  are  such 
which  by  reason  of  non-performance  defeat  the  estate 
already  created. 

§  137.  Conditions  precedent  and  subsequent. — The 
intention  of  the  parties  as  it  appears  in  the  deed  de- 
termines whether  the  condition  is  precedent  or  sub- 
sequent. A  condition  precedent  which  is  possible 
and  lawful  must  be  strictly  performed.  Conditions 
subsequent  which  defeat  the  estate  are  strictly  con- 
strued against  the  grantor.  Conditions  must  be  an- 
nexed at  the  time  the  estate  is  created;  they  must 
operate  upon  the  whole  of  the  estate,  though  they 
may  be  limited  to  a  part  of  the  land.  If  an  estate 
in  fee  is  granted  with  a  provision  that  upon  the  hap- 
pening of  an  event  the  estate  shall  cease  for  a 
number  of  years,  it  would  not  be  good.  Conditions 
can  only  be  reserved  in  favor  of  the  grantor  and  his 
heirs.     Conditions  which  are  impossible  when  made, 


§138  MODERN  TENURES. 

or  become  so  by  the  act  of  God,  arc  void.  Unla 
conditions  are  void.  Conditions  repugnant  to  the 
nature  of  the  estate  are  not  good,  as  if  an  estate  is 
given  in  fee  on  condition  that  the  grantee  will  not 
sell  it  or  enjoy  it.  Conditions  in  absolute  prevention 
of  marriage  are  void,  though  in  some  states  widows 
who  take  lands  from  their  deceased  husbands  coupled 
with  such  a  condition  are  bound  by  the  conditions. 
Conditions  may  be  performed  by  any  one  having  an 
interest  in  the  estate.  Equity  will  relieve  against 
forfeitures  for  breach  of  conditions  when  compensa- 
tion can  be  made  in  damages.  Where  a  condition  is 
broken  the  grantor  may  bar  himself  from  taking  ad- 
vantage of  it,  as  by  taking  rent  afterwards  with  knowl- 
edge. Mortgages  are  sometimes  treated  under  the 
head  of  estates  upon  condition.  They  are  so  con- 
sidered yet  in  some  of  the  states,  but  in  most  of  them 
they  are  treated  as  mere  liens.  The  common  law 
rule  is  that  the  mortgagee  takes  the  title  subject  to  be 
defeated  by  payment  of  the  mortgage  debt.  This 
rule  prevails  in  most  of  the  older  states,  but  a  large 
majority  of  the  states  of  the  Union,  either  by  statute 
or  the  decrees  of  the  courts,  treat  a  mortgage  as  a 
mere  lien  to  secure  the  debt,  while  the  title  remains 
in  the  mortgagor  until  default,  foreclosure  and  sale. 
The  methods  b}r  which  the  mortgagor  proceeds  to  en- 
force his  lien  after  the  maturity  of  the  mortgage  debt 
are  regulated  by  the  statutes  of  the  different  staf 

§138.  Estates  in  remainder. — Estates  in  remainder 
were  popular  in  England  because  they  facilitated  the 
creation  of  family  settlements,  and  often  there  were 
several  remainders  limited  upon  one  another  to  pre- 
vent an  estate  passing  out  of  the  family.     Remaind- 


SO  ELEMENTARY  LAW.  §138 

ers  are  not  favored  in  this  country,  anything  tending 
to  obstruct  the  free  sale  of  land  being  opposed  to  the 
spirit  of  our  people  and  institutions.  Blackstone's 
definition  is  concise  and  comprehensive.  "An  estate 
in  remainder  is  an  estate  limited  to  take  effect  and 
be  enjoyed  after  another  estate  is  determined."  It  is 
a  vested  remainder  where  there  is  a  person  in  being 
who  would  have  an  immediate  right  of  possession 
upon  the  ceasing  of  the  precedent  estate.  It  is  a  con- 
tingent remainder  if  the  person  to  whom,  or  the 
event  upon  which  it  is  limited  is  uncertain.  If  one 
holding  the  fee-simple  grants  lands  to  A  for  twenty 
years,  and  then  to  B  and  his  heirs  forever,  A  is  ten- 
ant for  years,  remainder  to  B  in  fee.  Or  there  may 
be  a  grant  to  A  for  years,  then  to  B  for  life,  and  then 
to  C  and  his  heirs  forever,  then  A  is  tenant  for  years, 
B  for  life,  with  remainder  in  fee  to  C.  These  several 
estates  are  parts  of  one  estate,  the  fee-simple  of  the 
grantor  out  of  which  the  three  several  estates  are 
carved.  It  follows,  of  course,  that  no  remainder  can 
be  limited  after  a  grant  in  fee-simple.  There  must 
be  a  precedent  estate  created,  upon  which  the  re- 
mainder is  limited,  and  this  precedent  estate  is  called 
in  law  the  particular  estate.  It  is  essential  also  that 
the  remainder  must  commence  or  pass  out  of  the 
grantor  at  the  time  the  particular  estate  was  created. 
The  remainder  must  vest  in  the  grantee  during  the 
continuance  of  the  particular  estate,  or  instantly  up- 
on its  termination.  A  contingent  remainder  may 
never  take  effect,  as  where  there  is  a  grant  to  A  for 
life,  remainder  to  B's  eldest  son  (then  unborn)  in 
tail.     If  B  has  no  son  when  the  particular  estate  is 


§139  MODERN  TENURES.  87 

determined,  viz.,  at  the  death  of  A,  the  remainder  is 
gone. 

§  130.  Rule  in  Shelley's  Case. — And  here  is  a 
proper  place  to  consider  what  is  known  as  the  rule 
in  Shelley's  Case.  It  was  laid  down  in  the  following 
language  in  1  Rep.  104  as  follows:  "It  is  a  rule 
of  law,  where  an  ancestor  by  any  gift  o:  conveyance 
takes  an  estate  in  freehold,  and  in  the  same  gift  or 
conveyance  an  estate  is  limited  mediately  or  im- 
mediately to  his  heirs  in  fee  or  in  tail,  that  always 
in  such  case  the  heirs  are  words  of  limitation  of  the 
estate  and  not  words  of  purchase."  Land  is  ac- 
quired in  two  ways,  by  descent  and  purchase.  Where 
one  derives  title  through  a  deed  or  will,  he  is  a  pur- 
chaser. Where  it  comes  to  him  by  virtue  of  his 
kinship  or  relation  to  an  ancestor,  he  takes  by  de- 
scent. But  if  by  will  an  estate  is  given  which  is  the 
same  in  quality  and  quantity  as  that  which  would 
go  by  descent,  it  is  an  estate  by  descent.  The  effect 
of  the  rule  in  Shelley's  Case  was  to  cut  off  what 
would  seem  to  be  intended  as  a  remainder  limited 
to  the  heirs  of  the  grantee,  and  to  make  the  estate 
an  absolute  fee  in  the  grantee.  This  rule  has  been 
generally  adopted  in  this  country  as  a  part  of  the 
common  law,  although  it  has  been  modified  or  abol- 
ished by  statute  in  some  of  them. 

§  140.  Executory  devises. — An  executory  devise 
of  lands  is  such  disposition  of  them  by  will  that 
thereby  no  estate  vests  at  the  death  of  the  devisor, 
but  only  on  some  future  contingency.  Executory 
devises  were  created  to  carry  out  the  purposes  of  the 
testator.  A  devise  to  a  femme  sole  and  heirs  upon 
the  day  of  her  marriage  is  a  good  executory  devise. 


88  ELEMENTARY  LAW.  §  141 

If  she  does  not  marry  the  estate  would  go  by  descent 
to  the  heirs  of  the  testator.  A  devise  to  A  and  his 
heirs,  but  if  he  dies  before  the  age  of  twenty-one 
years,  then  to  B  and  his  heirs,  is  good,  though  if 
these  words  were  used  in  a  deed  the  remainder  would 
be  void  and  A  would  take  a  fee.  Executory  devises 
were  abused  by  making  them  the  means  of  creating 
perpetuities.  So  there  is  a  rule  at  common  law  which 
has  been  incorporated  into  the  statute  law  of  many 
states  that  the  utmost  length  of  time  that  is  allowed 
for  the  contingency  of  an  executory  devise  to  happen 
in,  is  the  duration  of  a  life  or  lives  in  being  and 
twenty-one  years  afterwards. 

§  141.  Estates  in  reversion. — An  estate  in  rever- 
sion is  the  residue  of  an  estate  left  in  the  grantor  to 
commence  in  possession  after  the  determination  of 
some  particular  estate  granted  out  by  him.  It  grows 
out  of  the  legal  maxim  that  whatever  a  man  does 
not  dispose  of  remains  to  him  and  his  heirs.  It  is  a 
present  interest,  but  can  only  take  effect  in  the  future 
as  is  implied  in  the  definition  above  given. 

§  142.  Estates  in  severalty. — Estates  are  now  to 
be  considered  with  respect  to  the  owners  thereof, 
whether  in  severalty,  as  tenants  in  common,  or  as 
joint  tenants.  An  estate  in  severalty  is  one  which 
has  a  single  owner. 

§143.  Joint  tenancy. — At  common  law  a  joint 
tenancy  was  where  lands  or  tenements  were  granted 
to  two  or  more  persons,  to  hold  in  fee-simple,  fee 
tail,  for  life,  for  years  or  at  will.  In  joint  tenancies, 
there  must  be  unity  of  interest,  of  title,  of  time 
and  of  possession.  One  of  the  incidents  of  this  ten- 
ancy at  common  law  was  the  right  of  survivorship,  by 


§144  MODERN  TENURES.  89 

which  on  the  death  of  one  the  entire  estate  vested  in 
the  survivor.  In  this  sense,  joint  tenancies  do  not  exist 
in  this  country,  except  in  the  case  of  conveyances  to 
husband  and  wife  jointly.  These  are  called  tenancies 
by  the  entirety.  No  part  of  such  an  estate  can  be 
sold  by  one  so  as  to  affect  the  right  of  survivorship  of 
the  other.  No  part  of  it  can  be  seized  in  execution  for 
the  debt  of  either  during  its  continuance,  and  upon  the 
death  of  one  the  whole  vests  in  the  survivor.  In  Ohio 
the  courts  have  refused  to  recognize  such  a  tenancy,  by 
holding  that  husband  and  wife  holding  by  joint  deed 
or  devise  are  tenants  in  common,  without  the  right 
of  survivorship. 

§  144.  Tenancy  in  common. — A  tenancy  in  com- 
mon is  where  there  are  several  owners  who  may  hold 
by  different  title,  in  different  interests,  which  may  be 
acquired  at  different  times,  the  only  unity  being 
unity  of  possession. 

Tenants  in  common  may  have  partition  of  the 
lands.  They  may  sue  one  another  for  waste.  The 
possession  of  one  is  the  possession  of  all.  If  one  re- 
ceives all  the  rent,  or  more  than  his  share,  he  is  liable 
to  the  other  tenants  for  the  excess.  They  are  liable 
for  their  proportionate  share  of  the  expense  for 
repairs,  for  taxes,  and  for  insurance.  Tenants 
in  common  must  act  in  good  faith  towards  each 
other.  One  can  not  buy  in  the  estate  for  himself  at 
a  delinquent  tax  sale.  If  one  buys  in  an  outstanding 
title  which  threatens  the  estate,  he  can  not  claim  this 
in  his  own  right,  to  the  prejudice  of  his  co-tenants,  if 
they  are  willing  to  pay  their  share  of  the  purchase- 
money. 


CHAPTER  XII. 

TITLE   TO,  REAL    PROPERTY,    HOW   ACQUIRED. 

§  145.  Ways  of  acquiring  title. — Title  or  owner- 
ship of  real  property  may  be  acquired  by  /Occupancy 
or  possession  when  it  continues  long  enough  to  ripen 
into  a  perfect  title£by  marriage,  by  ^devise,  by  de- 
scent, by/contract. 

§  146.  Title  by  occupancy. — Mere  possession  or 
occupancy  is  the  lowest  form  of  title,  but  it  is  good 
in  the  occupant  against  the  world  until  some  one 
/  shows  a  better  title,  but  any  show  of  right  in  a  claim- 
ant would  be  good  as  against  a  mere  intruder.  As 
we  have  seen,  property  without  an  owner  belongs  to 
the  first  one  who  takes  possession  of  it.  This  right, 
which  was  so  important  at  the  time  of  the  early  set- 
tlements on  this  continent,  is  of  little  value  now  that 
most  of  our  public  domain  has  been  disposed  of.  Its 
assertion  by  the  European  nations,  who  are  extending 
what  they  choose  to  call  their  "spheres  of  influence" 
in  Africa,  bids  fair  to  result  in  serious  complications 
and  wars  such  as  grew  up  here  in  the  last  century 
between  France  and  England.  Where  two  claim  by ^ 
possessory  titles,  one  being  in  present  possession  and' 
the  other  having  had  prior  possession,  it  is  the  rule 
in  England  and  America  that  proof  of  prior  posses- 
sion is  presumptive  evidence  of  title  and  will  prevail 
over  the  claims  of  the  more  recent  occupant.     It  is 

(90) 


§  147  TITLE  TO  REAL  PROPERTY,  ETC.  91 

not  necessary  in  such  a  case  that  the  prior  possession 
should  have  continued  for  twenty  years.  The  statutes 
of  limitations  usually  provide  that  no  action  for  the 
recovery  of  the  title  or  possession  of  real  estate  shall 
be  maintained  after  twenty  years  from  the  time  the  j 
cause  of  action  accrued,  unless  the  person  entitled 
to  such  action  was  under  the  disabilities  of  infancy, 
coverture,  insanity,  or  imprisonment.  Special  periods 
of  limitations  are  fixed  by  the  statutes  of  different 
states  and  they  are  constantly  undergoing  modifica- 
tion . 

§  147.    Adverse  possession. — In  order  to  make  pos- 
session for  the  statutory  period  of  limitations  a  bar  to 
an  action,  the  possession  must  be  adverse.     Adverse  n 
possession  is  a  possession  inconsistent  with  the  right  ' 
of  the  true  owner;  in   other  words,  where  a  person 
possesses  property  in  a  manner  in  which  he  is  not 
entitled  to  possess  it,  and  without  anything  to  show 
that  he  possesses  it  otherwise  than  as  owner — that  is, 
with  the  intention  of  excluding  all  persons  from  it,  in- 
cluding the  rightful  owner — he  is  in  adverse  posses- 
sion of  it.     Thus,  if  A  is  in  possession  of  a  field  of 
B's,  he  is  in  adverse  possession  of  it,  unless  there  is 
something  to  show  that  his  possession  is  consistent 
with  a  recognition  of  B's  title.     Adverse  possession  „ 
depends  upon  the  intention  with  which  it  is  taken  ) 
and    held.     Where    there    is   an   unintentional    en- 
croachment on  the  land  of  another,  as  where  a  man 
thinking  he  is  building  on  his  own  line  by  mistake 
puts  part  of  the  structure  over  the  line,  such  posses- 
sion is  not  adverse.     The  possession  must  be  hostile^ 
or  adverse,  actual,  visible,  notorious,  exclusive,  con- 
tinuous and  under  claim  of  title. 


92  ELEMENTARY  LAW.  §148 

§  148.  Occupying-  claimant. — It  sometimes  hap- 
pens that  one  has  a  claim  of  title,  and  thinking  it 
good  enters  upon  land  of  another  and  makes  valu- 
able improvements  on  it.  In  such  a  case  the  occu- 
pant may,  under  the  occupying  claimant's  statutes, 
which  have  been  enacted  in  most  of  the  states,  file 
his  complaint  and  have  his  improvements  and  the 
land   appraised   separately,   and   the  owner  is  then 

/  given  the  option  to  take  possession  upon  his  paying 
the  claimant  the  appraised  value  of  the  improve- 
ments and  the  taxes  paid,  with  interest,  deducting 
the  value  of  the  rents  and  profits  and  the  damages 
assessed  against  the  occupant  for  waste  or  other 
causes.  If  the  owner  fails  to  make  his  election,  the 
occupant  may  remain  in  possession  upon  paying  the 
value  of  the  land  aside  from  the  improvements. 
Tins  is  not  a  common  law  right,  but  is  purely  stat- 
utory. 

§  149.    Title  by  marriage. — Title  by  marriage  or 
by  dower  and  curtesy  we  have  already  considered. 
§  150.    Title  by  descent. — Where  a  man  dies  in- 
testate being  the  owner  of  lands,  the  law  disposes  of 
the  property  by  transferring  the  title  to  those  who  by 

/  virtue  of  the  law  of  the  place  where  the  land  lies  are 
his  heirs.  The  title  the  heirs  take  is  a  title  by  de- 
scent, and  the  person  from  whom  the  estate  descends 
i*>  called  inlaw  the  ancestor.  Thestatutes  of  descent- 
vary  in  the  different  states  according  to  the  wishes  of 
the  citizens  as  expressed  in  legislation,  as  in  some 
states,  where  those  of  the  whole  blood  of  the  ances- 
tor are  preferred  to  those  of  the  half  blood,  etc. 
iThose  who  take  land  by  descent  take  it  charged  with 
/its  burdens;  these  may  be  in  the  form  of  mortgage 


§151  TITLE  TO  REAL  PROPERTY,  ETC.  93 

or  other  lien  created  by  the  ancestor,  or  in  the  form 
of  a  general  indebtedness,  which,  so  far  as  it  is  in 
excess  of  the  personal  estate  of  the  ancestor,  is  a 
charge  upon  the  real  estate.  Personal-property  left 
by  an  ancestor  also  descends  to  his  heirs,  but  with 
this  difference,  the  line  of  descent  as  to  personal/ 
property  is  fixed  by  the  laws  of  the  place  where  the 
ancestor  resided  at  the  time  of  his  death,  not  where 
he  happened  to  be,  but  the  place  of  his  fixed  resi- 
dence; while  the  line  of  descent  as  to  his  land  is 
governed  by  the  law  of  the  place  where  it  lies.' 
Where  heirs  are  of  one  class,  as  sons  or  daughters, 
they  take  equally,  share  and  share  alike,  but  if  there 
are  children  and  grandchildren,  the  children  take  a 
full  share  each,  and  each  set  of  grandchildren  take 
what  their  parent  would  have  taken  if  living.  But  in 
some  states,  as  in  Indiana,  if  there  are  grandchildren 
only  left  as  heirs,  the  estate  is  divided  equally  amongst 
them  all.  Illegitimate  children  may  inherit  from 
their  mothers  alone,  unless  by  adoption,  according  to 
rules  prescribed  for  such  proceedings,  they  are  legiti- 
mized by  the  father. 

§  151.  This  is  not  the  place  to  give  the  rules  of 
descent  as  they  prevail  in  all  the  states.  It  is  be- 
lieved, however,  that  the  following  are  of  general  ap- 
plication. Where  heirs  take  by  descent,  they  take 
as  tenants  in  common.  Posthumous  children  may 
inherit.  Bastards  may  inherit  from  and  transmit  in- 
heritance to  the  mother.  Children  born  before  mar- 
riage and  acknowledged  after,  are  legitimate  and 
may  inherit.     Males  are  not  preferred  to  females. 

§  152.    Title  by  devise. — Title  by  devise  is  where 


94  ELEMENTARY  LAW.  §  153 

the  ownership  of  land  is  transferred  by  will.  Such 
a  transfer  of  land  is  called  a  devise.  The  person  who 
takes  it  is  a  devisee.  The  person  who  dies  and  leaves 
a  will  is  a  testator,  and  the  person  named  in  the  will 
and  charged  with  the  duty  of  carrying  out  its  pro- 
visions is  an  executor. 

§  153.  Wills, — Wills  are  of  great  antiquity,  and  it 
is  said  by  some  writers  that  it  is  impossible  to  find 
evidence  of  any  time  in  human  history  when  they 
did  not  exist  in  some  form,  though  Sir  Henry  Maine 
maintains  that  they  probably  did  not  exist  among 
the  barbarians  before  their  invasion  of  the  Roman 
Empire.  He  further  says  that  to  the  Romans  belongs 
pre-eminently  the  credit  of  inventing  the  modern  will, 
the  institution  of  which,  next  to  the  contract,  has 
exercised  the  greatest  influence  in  transforming 
human  society. 

§  154.  There  is  no  general  law  of  the  United 
States  on  the  subject  of  wills,  each  state  having 
its  own  laws  as  they  find  expression  in  the  de- 
cisions of  the  state  courts,  or  in  statutory  enact- 
ments. Who  may  make  a  will  is  the  first  question. 
Generally  all  persons  of  full  age  and  sound  mind 
are  capable,  though  in  some  states  married  women 
are  deprived  of  the  right.  The  capacity  to  make 
a  will  must  exist  when  it  is  made,  and  subse- 
quent incapacity  will  not  invalidate  it.  Whether  the 
testator  possessed  the  requisite  capacity  is  a  question 
of  fact  for  the  jury — the  interpretation  of  the  will,  the 
power  to  declare  its  meaning,  is  for  the  court.  Ordinar- 
ily, a  will  must  be  reduced  to  writing  and  must  be 
subscribed  by  the  testator  in  the  presence  of  attesting 
witnesses,  who  shall  also  subscribe  the  same  in  the 


§  155  TITLE  TO  REAL  PROPERTY,  ETC.  95 

testator's  presence  and  at  his  request.  Nuncupative  or 
verbal  wills  may  be  made  by  which  personal  property 
can  be  disposed  of,  and  the  manner  of  making  and 
proving  such  wills,  as  well  as  the  amount  of  prop- 
erty so  disposable,  is  controlled  by  statute.  After  a 
will  is  made,  it  is  common  for  the  testator  to  add  to 
the  original  will  certain  modifications  of  it.  These 
must  be  reduced  to  writing,  and  be  attested  in  like 
manner  as  the  original  will.  Such  modifications  are 
called  codicils. 

§  155.  Ajvjn_jmav_beJ revoked  in  several  ways. 
The  making  of  a  new  will  revokes  all  prior  wills. 
The  testator  may  revoke  his  will  by  mutilating  or 
destroying  it  with  the  intent  to  revoke  it,  or  such 
mutilation  or  destruction  may  be  done  by  any  one  at 
the  request  of  the  testator.  The  subsequent  sale  of 
land  devised  by  a  will  revokes  the  will  as  to  that 
land.  The  testator  may  revoke  the  will  by  a  writing, 
subscribed  and  attested  like  a  will,  in  which  his  in- 
tention to  revoke  it  is  clearly  expressed.  A  will  is 
sometimes  revoked  by  operation  of  law,  as  when  a 
child,  unprovided  for  in  the  will,  is  subsequently 
born. 

§  156.  Wills  relating  to  land  must  be  executed 
and  attested  according  to  the  forms  required  by  tin' 
law  of  the  place  where  the  land  lies.  Wills  dispos- 
ing of  personal  property  must  be  executed  according 
to  the  laws  of  the  place  where  the  testator  resided  at 
the  time  of  his  death.  The  provisions  of  wills  exe-. 
cuted  and  proved  in  a  foreign  country  or  another! 
state  may  be  enforced  wherever  property  is  found 
belonging  to  the  testator,  and  disposed  of  by  the  will, 
upon  producing  and  placing  of  record  a  copy  of  the 
will  and  a  duly  certified  copy  of  the  proceedings  by 


96  ELEMENTARY  LAW.  §  157 

which  the  will  was  admitted  to  probate.  The  methods 
of  proving  and  enforcing  the  provisions  of  such  wills 
are  regulated  by  statute. 

§  157.  A^jviKjnay  be  se^  aside  in  a  suit  brought 
for  that  purpose  by  any  party  in  interest,  when  it  is 
proved  that  the  will  was  unduly  executed,  that  its 
execution  was  procured  by  fraud  or  duress,  or  that 
the  testator  did  not  possess  the  legal  capacity  to  make 
a  will. 

•  §158.  Title  by  purchase. — The  cumbersome  meth- 
ods of  transferring  title  to  real  estate  which  were 
customary  under  the  common  Jaw  of  England  have 
never  prevailed  in  this  country,  though  in  some 
localities  there  are  useless  intricacies  and  mysteries 
in  the  forms  of  conveyance  which  were  invented  and 
are  perpetuated  by  scriveners  and  lawyers  for  their 
own  profit  and  at  great  expense  to  their  clients. 
Since  real  estate  has  become  a  commodity,  and  has 
lost  in  public  estimation  much  of  that  fictitious  dig- 
nity with  which  it  was  clothed  by  the  common  law, 
the  forms  of  buying  and  selling  and  conveying  it 
have  been  much  simplified.  Title  bonds,  quitclaim 
and  warranty  deeds  are  about  the  only  instruments 
necessary  to  carry  out  the  intention  of  the   parties. 

I  A  title  bond  is  an  agreement  signed  by  the  seller 

/  agreeing  to  convey  to  the  buyer,  for  a  stipulated  price 
to  be  paid,  certain  land  described  in  the  instrument. 

/  A  quitclaim  deed  is  a  form  of  conveyance  in  which 
the  grantor  conveys  to  the  grantee,  his  heirs  and  as- 
signs, all  the  grantor's  present  interest  in  land.     A 

/  warranty  deed  is  a  form  of  conveyance  by  which  the 
grantor  conveys  land  to  the  grantee,  his  heirs  and 
assigns,  with   an  agreement  expressed  in  the  deed 


§  159  TITLE  TO  REAL  PROPERTY,  ETC.  97 

that  the  grantor  will  warrant  and  defend  the  title 
against  all  persons,  and  against  all  incumbrances. 
The  form  may  be  varied  when  the  warranty  is  not 
general,  but_s£ecial,  and  where  certain  incumbrances 
are  assumed  by  the  grantee.  By  special  clauses  in- 
corporated in  the  deed  the  exact  meaning  of  the  par- 
ties as  to  what  interest  is  conveyed  and  what  liens  are 
assumed  may  lie  expressed.  To  make  a  deed  effec- 
tive to  pass  title,  it  must  be  executed  in  due  form 
and  be  delivered  to  the  grantee,  or  to  some  one  for 
him.  To  make  the  delivery  effective  the  grantor 
must  relinquish  all  control  over  the  instrument.  If, 
after  it  is  executed,  it  is  put  in  the  hands  of  a  third 
person,  to  be  by  him  delivered  upon  the  performance 
of  some  act  or  the  happening  of  some  contingency, 
the  instrument  is,  until  the  act  is  performed  or  the 
contingency  happens,  an  escrow  and  not  a  deed. 

§  159.  Title  bond. — The  title  bond,  as  we  have  seen, 
is  a  sale  of  land  with  an  agreement  to  convey.  It 
must  be  in  writing  because  by  the  statute  of  frauds 
no  action  can  be  maintained  on  an  agreement  for  the 
sale  of  lands  or  any  interest  therein,  unless  the 
agreement,  or  some  memorandum  thereof,  is  in  writ- 
ing, and  signed  by  the  person  to  be  charged  thereby, 
or  by  some  one  authorized  to  sign  it  for  him.  Such 
a  bond  only  gives  an  equitable  estate,  even  where 
the  purchase-money  is  all  paid,  but  a  court  of  equity 
upon  proof  of  payment  will  compel  the  seller  to 
make  a  deed  according  to  his  agreement,  and  the 
same  relief  will  be  given  against  the  heirs  of  the 
seller. 

§1G0.   Deeds  by  owners  not   in  possession. — At 


93  ELEMENTARY  LAW.  §  161 

common  law  the  conveyance  of  land,  which  at  the 
time  of  the  conveyance  was  in  the  adverse  possession 
of  another,  was  void,  but  this  rule  of  the  common  law 
has  been  abrogated  by  the  laws  of  many  states, although 
in  some  of  them  it  is  still  recognized.  The  reason  for 
the  rule  was  that  the  right  to  make  such  conveyances 
tended  to  encourage  litigation,  and  because,  as  Coke 
says,  "  under  color  thereof  pretended  titles  might  be 
granted  to  great  men,  whereby  right  might  be  trod- 
den down  and  the  weak  oppressed."  Conveyances 
of  land  pending  suit  involving  the  title  thereto  are 
void,  except  in  states  where  by  statutory  enactment 
they  are  recognized  as  valid. 

§  161.  Forms  of  deeds. — What  form  is  necessary 
and  what  formalities  in  its  execution  are  requisite 
to  give  validity  to  a  deed,  depends  upon  the  statutes 
of  the  state  where  the  land  lies. 

§  162.  Registration  of  deeds.— A  deed  after  its 
execution  and  delivery  should  be  recorded  promptly. 
A  delay  in  recording  it  beyond  the  time  fixed  by 
statute  will  make  the  deed  void  as  to  subsequent 
purchasers  in  good  faith  without  notice  of  the  exist- 
ence of  the  unrecorded  deed.  All  sales  of  interests 
in  land,  except  leases  for  short  terms  specified  by 
statute,  must  be  in  writing  and  should  be  recorded. 
To  entitle  such  instruments  to  be  recorded,  they  must 
be  acknowledged  before  some  officer  authorized  to 
take  such  acknowledgment. 

§  163.  Parties  to  deeds. — The  parties  to  a  deed, 
especially  the  grantors,  must  be  capable  under  the 
law  of  making  such  contracts.  If  it  is  intended  to 
convey  the  interest  of  the  husband  and  to  bar  the 
wife's  right  of  dower,  she  must  join  in  the  deed  with 


§  164  TITLE  TO  REAL  PROPERTY,  ETC.  99 

her  husband,  and  under  the  laws  of  some  of  the  states 
she  must  be  examined  by  the  officer  taking  the 
acknowledgment,  separate  and  apart  from  her  hus- 
band, to  see  that  her  uniting  in  the  deed  is  her 
free  and  voluntary  act.  A  husband  may  execute  a 
valid  conveyance  of  his  lands  without  his  wife  join- 
ing in  the  deed,  but  the  grantee  takes  subject  to  the 
wife's  right  of  dower,  and  if  she  survives  her  hus- 
band, she  can  have  her  dower  assigned  to  her  out 
of  the  land.  A  wife's  deed  of  her  own  land,  with- 
out her  husband  joining,  is,  in  most  states,  void. 

§  164.  Guardian's  deeds. — A  guardian  can  only 
convey  his  infant's  land  when  authorized  to  do  so  by 
a  court  having  jurisdiction.  The  deed  of  an  infant 
is  voidable,  and  may  be  ratified  or  disaffirmed  by 
the  infant,  on  arriving  at  full  age.  Lands  of  idiots 
and  lunatics  can  only  be  conveyed  by  guardians,  un- 
der authority  of  the  court. 

§  165.  Deeds  of  partners. — Real  estate  owned  by 
a  partnership  for  partnership  purposes  can  be  trans- 
ferred by  a  conveyance  in  which  all  the  partners 
should  unite  as  grantors.  If  it  is  desired  that  one 
should  act  for  all,  his  authority  should  be  evidenced 
by  a  power  of  attorney  executed  by  his  copartners. 
And  while  it  is  not,  as  a  rule,  necessary  to  have  the 
wives  of  the  partners  join  their  husbands  in  such 
conveyances,  it  is  the  safer  practice  to  have  them 
do  so. 

§  166.  Deeds  of  corporations. — Corporations,  if  by 
their  charters  they  may  hold  real  estate,  may  convey 
the  same,  under  the  corporate  seal  and  by  the  officer 
designated  in  the  laws  of  the  corporation  to  sign  the 
deed  in  its  name. 


100  ELEMENTARY  LAW.  §  167 

§  167.  Powers  of  attorney. — A  person  holding  a 
power  of  attorney  for  the  purpose  should  not,  when 
conveying  land,  affix  his  own  name,  but  the 
name  of  the  principal  to  the  conveyance.  Pow- 
ers of  attorney  authorizing  the  conveyance  of  real 
estate  should  be  signed  and  acknowledged  and  re- 
corded, so  that  purchasers  dealing  with  the  attorneys 
may  know  the  extent  of  their  powers. 

§  168.  Deeds  by  officers. — Sheriffs,  master  com- 
missioners, and  others  appointed  by  the  court,  in 
making  deeds  should  strictly  pursue  the  statute  and 
the  decrees  of  the  court  authorizing  the  conveyance. 
A  sheriff's  deed  executed  according  to  law  need  not 
be  submitted  to  the  court  for  its  approval,  but  com- 
missioners, guardians,  executors  and  others  who 
make  what  are  called  judicial  sales,  should  report 
them  to  the  court  with  a  form  of  conveyance  for  the 
approval  of  the  court.  Lands  are  conveyed  by  audit- 
ors or  other  officers  where  they  have  been  sold  for 
delinquent  taxes.  Titles  acquired  by  means  of  tax 
sales  are,  if  not  regarded  with  suspicion,  carefully 
scrutinized,  and  any  irregularity  in  the  levy  of  taxes 
or  sale  will  vitiate  the  deed. 

§  169.  Description  of  land  conveyed. — The  land 
should  be  so  described  in  a  deed  or  agreement  for  sale 
that  a  stranger,  without  the  aid  of  outside  evidence, 
can  go  upon  the  premises  and  identify  them.  In 
states  where  the  public  lands  have  been  surveyed  in 
sections  and  sectional  subdivisions,  it  is  sufficient  to 
describe  the  land  as  being  section  No.  — ,  township 

— ,  range  — ,  in county  and state.    Where 

the  land  is  described  by  metes  and  bounds  the  lines, 


§  170  TITLE  TO  REAL  PROPERTY,  ETC.  101 

courses,  corners  and  distances  should  be  accurately 
followed. 

§  170.  Title  by  eminent  domain. — All  private 
ownership  of  land  is  held  subject  to  the  state  in  which 
it  lies,  and  there  resides  in  the  state  the  power  to  re- 
sume possession  and  ownership  of  it,  whenever  the 
public  good  requires  it.  This  power  has  its  limits 
fixed  by  the  constitutions  of  the  United  States  and  of 
the  several  states,  which  provide  that  private  property 
shall  not  be  taken  for  public  use  without  just  com- 
pensation. Where  it  is  desired  to  appropriate  land 
for  the  purpose  of  establishing  navy  yards,  arsenal-, 
or  for  sites  for  post-office  buildings,  custom  houses 
and  the  like,  the  government,  if  it  can  not  secure  de- 
sirable property  by  purchase,  institutes  by  its  proper 
officers  proceedings  in  the  proper  courts  within  whose 
jurisdiction  the  land  lies,  to  have  the  value  of  the 
land  ascertained.  Upon  payment  of  the  amount  so 
ascertained,  the  title  vests  in  the  government.  This 
right  to  appropriate  private  property  for  the  public- 
use  is  called  the  right  of  eminent  domain. 

§  171.  This  right  of  eminent  domain  is  exercised 
in  another  way  when  private  individuals  for  their  own 
profit  embark  in  enterprises  which  perform  some 
public  service.  It  can  only  be  exercised  where  the 
property  is  taken  for  a  public  use,  and  where  the 
property  condemned  is  necessary  to  enable  the  pub- 
lic use  to  be  carried  into  effect.  It  is  also  a  condition 
that  compensation  must  be  made  to  the  owner,  and 
it  is  generally  held  that  payment  must  be  made  be- 
fore entry.  Cities  and  towns  take  property  for  streets 
and  parks;  railroad,  turnpike,  telegraph,  telephone, 
canal,  ferry,  gas,  water,  and  irrigation  companies, 


202  ELEMENTARY  LAW.  §  172 

condemn  land  for  right  of  way,  and  exercise  this 
right  when  authorized  to  do  so  by  the  legislature, 
with  whom  rests  the  power  to  determine  the  manner 
in  which,  and  purposes  for  which,  it  may  be  exer- 
cised. 

§  172.  The  proceedings  by  which  property  may  be 
taken  and  appropriated  for  the  purposes  named  in 
the  preceding  section  are  regulated  by  statute,  and 
in  this  matter  there  is  substantial  uniformity  in  the 
laws  of  the  several  states.  The  corporation  desiring 
to  exercise  the  right  ma}'-  file  in  the  proper  court  an 
instrument  of  appropriation,  setting  forth  the  uses  to 
which  the  property  is  to  be  devoted,  giving  an  ac- 
curate description  of  the  property  intended  to  be  ap- 
propriated, and  setting  out  the  names  of  the  owners 
and  persons  interested  in  it.  The  proceedings  may 
be  summary,  as  in  some  states,  where  the  law  does 
not  give  the  right  of  trial  by  jury,  or  the}^  maybe  in 
the  form  of  a  civil  action,  in  which  the  right  to  a 
trial  by  jury  is  given.  Proceedings  in  the  exercise 
of  the  right  of  eminent  domain  are  not  "suits  at 
common  law,"  for  which  "  the  right  of  trial  by  jury 
shall  be  preserved,"  as  required  by  the  constitution. 
In  either  case  the  jury  or  commissioners  selected 
hear  evidence,  view  the  premises  and  report  to  the 
court  their  finding  as  to  the  amount  of  damages  to 
be  paid  to  the  land-owners.  When  the  report  is  con- 
firmed by  the  court,  the  party  seeking  the  aj)propria- 
tion  may  pay  the  money  into  court,  and  enter  upon 
the  property.  If  either  party  is  dissatisfied  with  the 
report,  an  appeal  may  usually  be  taken  from  the 
award.  As  the  proceedings  are  purely  statutory,  the 
provisions  of  the  statute  regulating  them  must    be 


§  173  TITLE  TO  REAL  PROPERTY,  ETC.  103 

strictly  followed.  Judgments  in  such  cases  have  the 
same  binding  effect  as  ordinary  judgments,  and  they 
can  not  be  collaterally  impeached. 

§  173.  Title  by  escheat. — Where  a  person  died  in- 
testate in  England  without  lawful  heirs  the  title  to 
his  real  property  went  back  to  the  original  grantor, 
or  lord  of  the  fee,  from  whom  it  proceeded.  In  this 
country  when  a  man  dies  intestate  and  without 
heirs,  the  title  to  his  real  property  reverts  or  escheats 
to  the  people,  as  forming  part  of  the  common  stock 
of  the  community,  it  being  a  fundamental  principle 
that,  if  the  ownership  of  property  becomes  vacant, 
the  right  must  necessarily  subside  into  the  whole 
community  in  whom  it  was  vested  at  the  origin  of 
society.  This  rule,  which  formerly  applied  to  real 
property  only,  is  extended  by  the  laws  of  most  of  the 
states  to  personal  property. 

§  174.  Title  by  forfeiture. — Title  by  forfeiture  is 
a  title  which  the  state  acquires  to  the  property  of  a 
felon  who,  with  his  heirs,  devisees  and  legatees,  are 
deprived  of  it  on  account  of,  and  as  a  punishment 
for,  high  crimes.  Such  forfeitures  are  by  the  con- 
stitutions of  many  states  prohibited.  Conditional 
estates  in  chattels  and  real  property  may  be  forfeited 
by  breach  of  conditions,  and  the  misuse  of  a  chattel 
by  a  person  having  a  qualified  interest  therein  will 
sometimes  determine  his  estate  in  favor  of  the  abso- 
lute owner. 


CHAPTER  XIII.  ' 

PERSONAL  PROPERTY. 

§  175.  Definition. — Personal  property  embraces  all 
objects  and  rights  which  are  capable  of  ownership, 
except  real  estate  or  some  interest  therein. 

§  176.  Title  to — How  acquired. — The  title  to  per- 
sonal   property  may  be    acquired   in  various  ways. 

( 1 )  By  occupancy,  as  where  one  finds  or  takes  posses- 
sion of  an  article  which  has  no  owner  or  which  has 
been  abandoned,  or  where  one  captures  wild  animals, 
or  fish,  or  finds  a  jewel  to  which  no  one  claims  title. 

(2)  By  increase  or  accession,  as  where  one  owns 
animals  who  have  young.  (3)  By  confusion,  as 
where  one  has  goods  or  property,  like  wheat,  and 
some  one  wrongfully  mixes  his  property  of  the  same 
kind  with  it,  so  that  it  can  not  be  distinguished  and 
separated.  (4)  By  gift,  as  where  the  owner  of  an 
article  delivers  it  to  one  with  the  intent  to  pass  the 
title  to  the  donee.  (5)  By  a  written  transfer  de- 
scribing the  property  and  the  person  to  whom  it  is 
transferred.  ( 6 )  By  sale  by  the  owner,  with  or  with- 
out delivery  of  possession.  ( 7 )  B}r  succession  or  de- 
scent from  one  who  dies  intestate.  (8)  By  bequest 
contained  in  a  will.  (9)  By  operation  of  law  or 
judgment,  as  where  one  is  sued  for  the  conversion  of 
another's  property  and  judgment  is  rendered  against 
the  defendant  for  its  value;  in  such  cases,  upon  pay- 

(104) 


J  X77  PERSONAL  PROPERTY.  105 

ment  or  satisfaction  of  the  judgment  so  rendered  the 
title  to  the  property  vests  in  the  defendant.  So  the 
title  to  the  personal  property  of  one  dying  testate  or 
intestate  vests  in  the  executor  or  administrat  u 
mere  force  of  law.  So  a  qualified  title  to  the  per- 
sonal property  of  a  ward  vests  in  the  guardian ,  1 
the  assignee  of  a  bankrupt  and  a  receiver  appointed 
by  the  court  have  a  title  to  the  goods  which  come  to 
their  possession  in  the  administration  of  these  trusts. 
( 10 )  Title  to  personal  property  may  be  acquired  also 
by  purchase  at  a  sale  by  an  executor,  administrator, 
guardian,  assignee  in  bankruptcy,  trustee,  sheriff  or 
other  officer  who,  by  law  or  the  decree  of  a  court, 
has  authority  to  make  such  sale. 

§  177.  Burial  rights. — At  common  law  there  could 
be  no  ownership  of  the  bodies  of  the  dead,  but  in 
some  states  the  law  has  been  modified  and  some  of 
the  rules  of  property  have  been  applied.  In  such 
states  the  bodies  belong  to  the  surviving  relatives  in 
the  order  of  inheritance,  and  they  have  the  right  to 
control  the  disposition  thereof.  There  would  be  a 
right  of  action  against  one  who  robs  the  grave  or 
desecrates  the  body.  The  real  injury  in  such  case 
would  not  be  to  the  grave  or  body,  but  to  the  feel- 
ings of  the  survivors,  and  the  law  recognizes  such 
injury  as  a  legitimate  basis  for  recovery  of  damages. 


CHAPTER  XIV. 

decedents'  estates. 

§  178.   Testator  and  intestate. — A  person  dying 

without  making  a  will  is  called  an  intestate,  and  one 
who  makes  and  leaves  a  will  is  called  a  testator. 
§  179.   Statutes  of  descent  and  distribution. — The 

personal  property  of  an  intestate  is  distributed  to  his 
heirs,  according  to  the  statutes  of  the  states  where 
the  intestate  lived  at  the  time  of  his  death,  and  his 
real  estate  descends  to  his  heirs,  according  to  the 
laws  of  the  place  where  the  real  estate  was  situate. 
§  180.  Administrator. — Upon  the  death  of  an  in- 
testate, an  administrator  is  appointed,  whose  duty  it 
is  to  take  possession  of  all  the  personal  property, 
convert  it  into  money,  pay  the  debts,  and  to  distrib- 
ute what  remains  amongst  the  heirs.  The  admin- 
istrator has  no  right  to  meddle  with  the  real  estate  of 
the  decedent,  unless  the  proceeds  of  the  personal  es- 
tate should  prove  insufficient  to  discharge  the  debts, 
in  which  case,  upon  proper  application  to  the 
court  having  probate  jurisdiction,  he  will  be  au- 
thorized to  sell  under  the  direction  of  the  court  so 
much  of  the  real  estate  as  will  discharge  the  debts.  The 
right  to  administer  is  generally  first  in  the  surviving 
husband  or  wife,  next  in  the  children,  according  to 
age  and  capacity,  next  to  the  largest  creditor,  and  if 
none  of  them  desire  to  accept  the  trust,  the  court  will 

(106) 


§181  DECEDENTS' ESTATES.  107 

appoint  some  competent  person.  When  appointed, 
the  administrator  is  required  to  take  an  oath  and 
give  a  bond  for  the  faithful  performance  of  the 
duties  of  his  trust.  He  is  at  all  times  under  the  di- 
rection and  control  of  the  court,  to  whom  he  is  re- 
quired to  report  all  his  doings  in  the  management  of 
the  property  which  comes  to  his  hands.  When  he  is 
ready  to  close  the  estate,  he  files  his  final  accounts, 
and  if  no  objections  are  made  by  the  parties  in  inter- 
est, he  is  discharged.  If  an  administrator  dies,  re- 
signs, or  is  removed,  the  court  appoints  a  successor, 
who  is  called  an  administrator  de  bonis  non,  and  his 
duty  is,  as  the  name  implies,  to  administer  so  much 
of  the  estate  as  was  left  unsettled  by  his  predecessor. 
The  authority  issued  by  the  court  under  its  seal  to 
an  administrator  is  called  letters  of  administration. 
§  181.  Executor. — An  executor  named  in  a  will  is 
the  person  appointed  by  the  testator  to  carry  out  his 
purpose  as  expressed  in  the  will.  It  is  usual  for  the 
executor  to  give  bond  and  take  an  oath,  though  the 
giving  of  the  bond  is  sometimes  dispensed  with 
where  the  testator  in  his  will  indicates  a  desire  to 
that  effect,  and  no  objection  is  made  by  the  parties 
in  interest.  The  authority  issued  to  an  executor  is 
called  letters  testamentary.  It  is  the  duty  of  the 
executor  to  carry  out  the  wishes  of  the  testator  in  the 
distribution  of  such  articles  of  personal  property  as 
are  disposed  of  by  the  will.  The  gift  of  personal 
property  by  will  is  termed  a  bequest  or  legacy,  and 
the  person  to  whom  it  is  given  is  called  a  legatee;  the 
gift  of  real  property  by  will  is  termed  a  devise  and 
the  person  receiving  it  is  termed  a  devisee.  If  the 
executor  has  cause  to  fear  that  the  property  of  the 


108  ELEMENTARY  LAW.  §  181 

testator  will  not  be  sufficient  to  discharge  the  debts 
of  the  estate  and  to  pay  the  legacies,  he  may  require 
the  legatee  to  give  bond  that,  in  case  such  defi- 
ciency should  occur,  he  will  refund  to  the  estate  so 
much  as  may  be  necessary  to  pay  his  share  of  such 
deficiency.  The  devisees  take  the  real  estate  ac- 
cording to  the  terms  of  the  will  as  soon  as  the  will 
is  admitted  to  probate,  subject  to  the  debts  remaining 
after  the  personal  estate  is  exhausted.  The  executor, 
as  the  administrator,  does  not  meddle  with  the  real 
estate  of  the  testator  unless  it  is  shown  to  the  court  that 
it  is  necessary  to  sell  a  portion  of  it  to  pay  debts.  The 
reports  and  accounts  of  the  executor  are  made  and  dis- 
posed of  in  the  same  way  as  the  reports  and  accounts 
of  the  administrator.  If  the  person  named  as  executor 
renounces  the  trust  the  court  appoints  an  adminis- 
trator as  in  the  case  of  an  intestate,  and  the  admin- 
istrator is  called  administrator  with  the  will  an- 
nexed, and  if  this  administrator  dies,  resigns  or  is 
removed,  a  successor  is  appointed  who  is  called  an 
administrator  de  bonis  non  with  the  will  annexed. 
Executors  and  administrators  receive  such  compen- 
sation as  the  court  may  allow,  or  as  may  be  provided 
for  in  the  will. 


CHAPTER  XV. 

CONTRACTS  IN  GENERAL. 

-+-  §  182.  Growth  of  right  to  contract. — In  primitive 
societies,  and  under  the  ancient  laws,  the  rights  and 
liabilities  of  persons,  so  far  as  they  had  rights  and 
liabilities,  were  largely  fixed  and  determined  by 
their  stations  in  life,  wThether  as  lord  or  vassal,  hus- 
band or  wife,  parent  or  child,  master  or  slave.  The 
individual,  unless  he  were  lord,  master  or  head  of  a 
family,  had  little  or  no  voice  in  fixing  his  rights  and 
obligations.  Status,  a  word  which  is  used  to  desig- 
nate the  personal  condition  of  the  individual  under 
these  old  laws,  has  been  gradually  succeeded  and 
almost  supplanted  by  conditions  which  are  the 
immediate  or  remote  result  of  agreement,  and  the 
great  movement  of  the  progress  in  society  has 
been  a  movement  from  status  to  contract.  Socie- 
ties are  civilized  and  progressive  to  the  extent  that 
the  individual  can  for  himself  establish  such  rela- 
tions as  he  chooses,  work  for  whom  he  pleases,  and 
for  what  he  pleases,  buy  and  sell  what  and  where  lie 
can,  having  no  superior  to  control  his  will  or  direct 
his  action,  except  so  far  as  the  necessary  restraints  of 
public  law  impose  limits  upon  such  action. 

§  183.  A  large  portion  of  the  field  of  jurisprudence 
is  devoted  to  the  subject  of  contracts.  Contracts  from 
their  very  nature  imply  that  men  are   disposed    in 

(109) 


HO  ELEMENTARY  LAW.  §184 

good  faith  to  keep  agreements  which  they  have  en- 
tered into  voluntarily.  And  the  multiplication  of  the 
different  forms  of  contract  indicates  in  a  marked 
manner  how  the  confidence  and  faith  of  man  in  his 
fellow-man  have  increased.  Society  is  shocked  by 
the  great  frauds  which  are  sometimes  perpetrated  by 
cunning  and  powerful  men,  but  the  great  current  of 
commercial  and  business  life  is  pure.  Men  as  a  rule 
are  faithful  in  the  performance  of  their  agreements. 
Where  men  from  an  honest  misunderstanding  as  to 
their  rights  under  their  contracts  or  from  a  dishon- 
est motive  to  evade  them  disagree,  the  aid  of  the 
law  is  invoked  to  settle  the  controversy.  Some  idea 
of  the  immense  stride  societ}7"  has  made  may  be  formed 
from  the  language  of  Sir  Henry  Maine,  who  says, 
"  The  only  form  of  dishonesty  treated  of  in  the  most 
ancient  Roman  law  is  theft.  At  the  moment  at 
which  I  write  (1861)  the  newest  chapter  in  the 
English  criminal  law  is  one  which  attempts  to  pre- 
scribe punishment  for  the  frauds  of  trustees. "  With- 
out dwelling  further  upon  this  interesting  branch  of 
the  subject,  we  will  now  proceed  to  a  consideration  of 
the  law  of  contracts  as  it  exists  at  present. 

§  184.  Contract  defined. — First  as  to  what  consti- 
tutes a  contract.  Blackstone's  definition  is  as  follows: 
J* 'A  contract  is  an  agreement  upon  sufficient  consid- 
eration to  do  or  not  to  do  a  particular  thing," 
which  is  concise  and  comprehensive.  Judge  Metcalf 
preferred  the  definition  of  Chief  Justice  Marshall,  as  it 
is  given  in  Sturges  v.  Crowningshield,  4  Wheat.  197. 
It  is  in  these  words:  "A  contract  is  an  agreement  in 
which  a  party  undertakes  to  do  or  not  to  do  a  par- 
ticular  thing."     In  this  definition  the  element  of 


§185  CONTRACTS  IN  GENERAL.  m 

consideration  is  omitted.  The  efforts  to  improve 
upon  these  definitions  by  later  learned  writers  show 
a  great  deal  of  ingenuity  and  a  large  command  of 
words,  but  it  is  questionable  whether  their  efforts  to 
make  things  clear  have  not  tended  rather  to  darken 
counsel.  For  the  student  who  is  trying  to  master 
the  elementary  principles  of  the  law,  the  definitions 
of  Blackstone  and  Marshall  will  be  quite  sufficient. 
Chancellor  Kent  approved  Blackstone 's  definition 
substantially  as  we  have  given  it. 

§  185.    Capacity  of  parties. — It  is  essential  to  the 
validity  of  a  contract  that  the  parties  should  have 
the    capacity   to    contract;    they    must   be    of  sound/ 
mind,  of  adequate  age  and  under  no  legal  disability. 
The    following    persons    are    incapacitated:     Insane  i 
persons,  drunkards,  infants,  persons  under  duress,  / 
and  alien  enemies  during  war.     In  some  of  the  states 
married  women  are  still  incapacitated  from  making 
contracts,  but  these  harsh  rules   are  yielding  to  the 
demands  of  an   enlightened  public  opinion,   which 
insists  upon  enlarging  the  sphere  of  woman's  rights 
and  increasing  her  control  over  her  own  property. 

§  186.  Void  and  voidable  contracts. — The  terms 
void  and  voidable  are  often  confused.  A  contract 
is  void  when  its  terms  are  so  uncertain  that  it  can 
not  be  enforced,  or  where  there  is  a  total  lack  of 
capacity  in  one  or  both  of  the  parties,  or  where  the 
contract  is  illegal,  being  in  contravention  of  some 
positive  law  forbidding  it ;  to  these  are  to  be  added 
contracts  to  refrain  from  doing  what  the  law  requires, 
contracts  which  are  impossible  of  performance,  con- 
tracts based  upon  an  immoral  consideration,  and 
contracts  contrary  to  public  policy.     Contracts  legal 


112  ELEMENTARY  LAW.  §  187 

in  part  and  illegal  in  part  will  be  enforced  as  to  the 
legal  part  if  it  can  be  separated  from  the  illegal;  if  not, 
the  whole  contract  is  void.  Voidable  contracts  are 
those  which  are  procured  by  fraud  or  duress,  or  those 
entered  into  by  persons  under  disability,  such  as  in- 
fants and  insane  persons.  Such  contracts  may  be 
ratified,  but  contracts  which  are  absolutely  void  are 
incapable  of  ratification. 

§  187.  Contracts  are  executory  or  executed. — A 
contract  to  do  a  thing,  followed  by  immediate  per- 
formance, is  executed;  a  contract  to  do  something  in 
the  future  where  instant  performance  is  not  expected 
is  executory.  If  one  fails  to  perform  an  executory 
contract,  performance  may  be  enforced  or  damages 
given  to  the  injured  party  for  non-performance. 

§  188.  Written  contracts. — A  written  contract  is 
an  instrument  fixing  the  rights  and  obligations  of 
the  contracting  parties,  concerning  the  subject-matter 
of  the  contract,  and  signed  by  them  or  one  of  them. 
It  is  sufficient  if  it  be  signed  by  one  and  accepted  by 
the  other.  The  party  accepting  a  written  agreement 
is  bound  by  all  its  stipulations  for  and  against  him. 
As  where  a  deed  is  delivered  by  the  grantor  and  ac- 
cepted by  the  grantee,  the  grantor  does  not  sign 
the  deed,  but  if  it  contains  covenants  which  are  to  be 
performed  by  him,  as  for  the  payment  of  an  incum- 
brance or  the  like,  he  is  bound  to  perform  the  cove- 
nant as  much  as  if  he  had  signed  the  deed.  A 
written  contract  may  consist  of  letters  or  telegrams. 
It  may  be  written  upon  several  papers  at  the  same 
time,  and  if  these  several  papers  relate  to  the  subject- 
matter  of  the  agreement  they  will  be  taken  as  a  part 
of  it. 


§[89  CONTRACTS  IN  GENERAL.  \\:) 

§  189.    Parol  contracts. — A  parol  contract  is  where 

the  agreement  of  the  parties  rests  in  spoken  words 
only,  or  partly  in  writing  and  partly  in  spoken  words. 
Parol  contracts  are  valid  and  enforceable,  except 
where  by  express  law  they  are  required  to  be  in  writ- 
ing. By  the  rules  of  common  law  all  contracts  not 
under  seal  were  called  simple  or  parol  contracts.  But 
the  rules  which  gave  a  higher  dignity  to  contracts 
under  seal  have  been  virtually  abrogated  in  this  coun- 
try by  usage  and  by  statutes.  In  most  of  the  states 
the  use  of  seals  is  now  regulated  by  statute,  the 
effect  of  which  has  been  to  modify  or  entirely  change 
the  common  law  usage  in  regard  to  seals.  In  some 
instances  the  distinction  between  sealed  and  unsealed 
instruments  is  done  away  with  in  terms,  while  in  others 
the  same  result  is  accomplished  by  abolishing  the  use 
of  seals  except  by  public  officials  and  corporations. 

§  190.  Express  contracts. — An  express  contract  is 
one. in  which  the  meaning  is  stated  in  plain  words, 
which  are  mutually  understood  by  the  parties  in  the 
same  way. 

§  191.  Meeting;  of  minds. — In  all  express  contracts, 
the  agreement  of  the  minds  of  the  parties  as  to  the 
subject-matter  of  the  contract  and  as  to  the  obliga- 
tions assumed  by  each  party  must  appear.  If  there 
is  a  misunderstanding  as  to  the  thing  contracted  for, 
or  as  to  the  time  or  place  of  performance,  as  to  the 
price  to  be  paid,  or  any  other  essential  matter,  there 
is  no  agreement,  and  consequently  no  binding  con- 
tract. As  if  A,  having  in  mind  one  of  several  horses 
in  his  field,  says  to  B,  who  has  in  mind  anothei 
horse  in  the  same  field,  "  I  will  sell  you  the  horse 
for  one  hundred  dollars,"  and  B  says,  "I  will  take  it 


114  ELEMENTARY  LAW.  §102 

at  that  price,"  here  is  no  contract,  for  the  minds  of 
the  parties  have  not  met  and  agreed  upon  the  same 
thing.  So,  if  A  says,  I  will  sell  an  article,  naming 
it,  for  one  hundred  and  sixty-five  dollars,  and  B, 
supposing  that  the  sum  named  was  only  sixty-five 
dollars,  agrees  to  pay  it,  it  is  plain  that  there  is  no 
agreement.  These  are  simple  forms  of  illustra- 
tion, and  they  could  be  multiplied  indefinitely. 

§  192.  Time  of  contract. — Questions  arise  as  to 
the  particular  time  when  the  agreement  is  to  be  con- 
sidered as  closed,  and  the  rights  and  obligations  of 
the  parties  fixed.  The  general  rule  is  that  whenever 
the  minds  of  the  parties  meet  in  agreement  as  to  all 
the  particulars  of  the  transaction,  the  contract  is 
made  and  binding.  Where  the  contract  consists  of 
correspondence,  it  is  considered  as  closed  and  bind- 
ing whenever  there  is  an  offer  on  the  one  hand  and 
an  acceptance  on  the  other.  The  acceptance  must 
be  without  qualification,  for  if  it  is  qualified  or  con- 
ditional, it  is  not  final,  and  the  matter  still  rests  in 
negotiation.  Where  a  letter  containing  an  offer  is 
transmitted  by  mail,  and  an  answer  accepting  the 
offer  in  its  precise  terms  is  mailed  also,  the  contract 
is  closed  and  the  rights  of  the  parties  fixed,  at  the 
instant  the  letter  of  acceptance,  properly  addressed, 
is  deposited  in  the  post-office.  There  has  been  much 
controversy  on  this  point,  some  writers  maintain- 
ing that  the  contract  is  not  complete  until  the  letter 
of  acceptance  has  been  received  by  the  person  who 
made  the  offer,  but  the  weight  of  authority  supports 
the  view  already  expressed. 

§  193.  Implied  contracts. — An  implied  contract  is 
one  in  which  the  conduct  of  the  parties  is  such  that 


§194  CONTRACTS  IN  GENERAL.  H5 

the  jury  may  infer  that  the  parties  did  intend 
to  make  a  contract.  The  customer  who  takes  up 
a  merchant's  goods,  the  master  who  takes  a  serv- 
ant into  his  employ,  in  the  one  case  there  is  an  im- 
plied contract  on  the  part  of  the  customer  to  pay  to 
the  merchant  the  reasonable  value  of  the  goods,  and 
in  the  other  case  there  is  an  implied  contract  on  the 
part  of  the  employer  to  pay  the  employe  the  reason- 
able value  of  his  labor.  If  parties  have  an  account- 
ing, and  have  agreed  upon  the  balance  due,  there  is 
an  implied  contract  that  the  debtor  will  pay  the  bal- 
ance. So  there  is  an  implied  contract  by  the  bor- 
rower to  repay  borrowed  money. 

There  is  a  class  of  cases  in  which  the  law  implies 
a  contract  obligation,  regardless  of  the  intention  of 
the  parties  ;  as  where  one  procures  the  goods  or 
money  of  another,  through  fraud  or  mistake,  the  law 
implies  an  obligation  to  return  or  pay.  These  are 
sometimes  called  quasi-contracts. 

§  194.  Contracts  of  record. — Where  a  judgment 
is  entered  in  a  court  of  record,  it  is  called  a  contract 
of  record,  on  the  theory  that  every  man  agrees  to 
obey  the  laws  of  the  land,  and  where  he  is  adjudged 
to  owe  a  sum  of  money  by  the  law  there  is  an  im- 
plied promise  on  his  part  to  pay  it.  Whore  a  man 
appears  in  court,  and  either  on  his  own  behalf  or  as 
surety  for  another,  enters  into  a  recognizance  con- 
ditioned for  the  payment  of  a  sum  of  money,  in  case 
of  the  failure  of  himself  or  his  principal  to  appear  in 
court  at  a  time  named,  it  is  a  contract  of  record.  In- 
fants may  enter  into  recognizances  which  will  be 
binding  on  them  and  their  estates. 


CHAPTER  XVI. 

PARTIES    TO    CONTRACTS. 

§  195.  Who  may  make  valid  contracts.— Gener- 
ally all  persons  and  corporations  not  disqualified  by 
law.  And  even  infants  and  lunatics,  who  are  under 
a  general  disability  to  assume  obligations  that  may 
be  enforced  against  them,  may  become  bound  to 
pay  for  the  necessaries  of  life  which  may  be 
supplied  for  their  support.  Sovereign  states  may 
enter  contracts,  but  such  contracts  can  not  be  en- 
forced against  them  by  suit  without  their  consent. 
Soon  after  the  adoption  of  the  constitution  of  the 
United  States  it  was  decided  that  a  private  citizen 
could  sue  a  state  without  its  consent,  but  the  consti- 
tution was  amended  so  as  to  prohibit  the  bringing  of 
such  suits.  Where  one  state  of  the  Union  has  a 
claim  against  another  state,  she  may  sue  upon  it  in 
the  Supreme  Court  of  the  United  States,  which  has 
exclusive  jurisdiction  of  such  controversies.  Foreign 
states  may  make  contracts  and  enforce  them  by  suit 
in  our  courts.  So  aliens  residing  or  trading  here 
have  the  same  right  to  make  contracts  and  sue  upon 
them  as  citizens,  unless  the  right  is  restricted  by 
treaty  stipulations  between  their  government  and  ours; 
in  some  states,  however,  they  may  not  acquire  title 
to  land.  An  alien  enemy,  that  is,  a  citizen  of  a  na- 
tion with  which  we  are  at  war,  can  make  no  contract 

(116) 


§196  PARTIES  TO  CONTRACTS.  H7 

or  acquire  any  rights  during  war,  unless  by  treaty 
between  the  belligerent  powers  the  right  is  given. 
He  may  be  sued  on  existing  contracts,  and  unless  a 
contract  existing  at  the  time  of  the  war  is  of  such 
a  character  that  it  is  continuing  in  its  nature,  war  will 
not  destroy  it.  Where  persons  engaged  in  certain 
callings  are  required  to  have  a  license  to  carry  on 
their  avocations,  the  statutes  of  some  states  make 
their  contracts  void,  unless  they  have  such  license. 

§  196.  Infants. — An  infant  is  a  person  under  twen- 
ty-one years  of  age,  and  while  under  that  age  he  can 
make  no  binding  contract  except  in  the  following 
cases,  viz.  :  (1)  For  necessaries.  (2)  Contracts 
entered  into  by  authority  of  law,  as  in  the  case  of  a 
recognizance  in  his  own  behalf.  (3)  Contracts  cre- 
ated by  law,  as  where  an  infant  marries  he  is 
bound  to  support  his  wife.  According  to  the 
weight  of  authority  he  is  not  bound  by  a  con- 
tract under  which  he  has  received  something  of  value 
which  he  can  not  return.  His  other  contracts  arc 
voidable;  that  is,  the  infant  may  ratify,  perform  or 
repudiate  them  at  his  option.  An  infant  where  his 
jather  has  emancipated  him,  by  relinquishing  his 
custody  and  refusing  to  maintain  him,  may  receive 
his  own  earnings,  but  it  does  not  enlarge  his  capac- 
ity to  make  contracts. 

§  197.  Infant's  contracts  for  necessaries. — What 
are  the  necessaries  for  the  payment  of  which  an  in- 
fant may  bind  himself  by  contract  ?  They  include 
clothing,  food,  medical  aid,  and  education,  and  these 
must  comport  in  quantity  and  quality  with  the  in- 
fant's station  in  life.  If  he  have  a  wife  and  chil- 
dren he  is    chargeable  with  necessaries   supplied  to 


118  ELEMENTARY  LAW.  §198 

them.  An  infant  is  not  bound  by  the  terms  of 
his  contract  to  pay  for  necessaries  be}Tond  a  reas- 
onable price  for  the  articles. 

§  198.  Fraud  of  infants. — If  an  infant  procures 
goods  of  a  tradesman  on  a  false  statement  that  he 
was  of  age  the  goods  can  be  reclaimed  on  the  ground 
of  fraud.  Sometimes  courts  of  equity  hold  an  infant 
to  a  contract  that  he  has  entered  into  under  a  false 
pretense  as  to  his  age.  "The  privilege  of  infancy  is 
a  shield  for  his  protection  and  is  not  to  be  used  as  a 
weapon  of  injustice." 

§  199.  An  infant  may  be  bound  by  an  executed 
contract  in  a  matter  where  he  would  not  be  bound  if 
it  was  executory.  If  an  infant  were  to  buy  a  thing, 
not  being  necessaries,  he  could  not  be  compelled  to 
pay  for  it,  but  having  paid  for  it  he  could  not  keep 
it  and  also  recover  back  the  money.  If  he  has  put 
money  into  a  partnership,  and  has  performed  serv- 
ices in  the  business,  he  can  not  on  rescinding  the 
agreement  get  back  his  money  and  pay  for  his  labor, 
too.  The  privilege  of  infancy  is  personal,  and  can 
only  be  pleaded  by  the  infant  himself ;  except  that 
if  he  dies  or  becomes  insane,  his  heirs,  administra- 
tor or  guardian  may  avoid  his  contracts. 

§  200.  An  infant  may  disaffirm  his  contract  dur- 
ing minority.  If  he  retains  the  thing  contracted  for 
after  he  arrives  at  full  age,  it  is  a  ratification  of  the 
contract.  So,  if  he  conveys  land  after  his  majority, 
which  he  purchased  during  his  infancy,  it  is  an  af- 
firmance. And  if  he  has  conveyed  land  during  his 
infancy,  and  in  his  majority  conveys  the  same  land 
to  another,  the  latter  deed  disaffirms  the  former. 
Where  he  elects  to  disaffirm,  he  must  disaffirm  the 


§201  PARTIES  TO  CONTRACTS.  119 

whole  contract.  There  can  be  no  ratification  of  a 
voidable  contract  during  infancy,  for  the  ratification 
would  be  voidable.  Retaining  after  he  arrives  at  ma- 
jority either  goods  or  land  purchased  during  his  in- 
fancy makes  the  contract  valid.  Seine  state-  by  their 
statutes  require  that  a  binding  ratification  of  a  i 
tract  made  by  an  infant  can  only  be  made  in  writing. 

§  201.  Contracts  made  by  persons  under  du 
are  not  binding.  Duress  exists  where  one  by  the  un- 
lawful act  of  another  is  induced  to  make  a  contract 
or  perform  some  act  under  circumstances  which  de- 
prive him  of  the  exercise  of  his  freewill.  There  may 
be  duress  of  the  person,  as  by  threats,  imprison- 
ment, or  an  exhibition  of  apparently  irresistible 
force,  or  of  the  goods,  where  one  is  compelled  to  sub- 
mit to  an  illegal  exaction  to  obtain  possession  of  them. 
The  imprisonment  must  be  unlawful  in  itself,  or  if 
lawful  it  must  be  enforced  in  a  cruel  and  oppres 
manner.  The  threat  or  threats  must  be  such  as  to 
excite  fear  of  some  grievous  wrong,  and  such  as 
would  overcome  the  will  of  a  person  of  ordinary 
courage.  Where  a  contract  is  obtained  by  duress,  it 
is  incumbent  upon  the  person  who  wishes  to  avoid 
the  contract  on  that  account  to  proceed  without  de- 
lay. If  after  the  duress  he  does  any  act  in  ratifica- 
tion of  the  contract,  he  is  cut  off  from  his  defense. 

§  202.  Insane  persons. — As  a  rule,  the  contracts 
of  persons  of  unsound  mind  are  not  binding  upon 
them.  Unsoundness  of  mind,  as  here  considered, 
is  such  a  lack  of  mental  capacity  as  totally  unfits  one 
for  the  care  of  his  own  interests.  Of  persons  of 
sound  mind  the  law  takes  no  note  of  the  grades  of 
mental  capacity  between  the  highest  and  the  lowest. 


120  ELEMENTARY  LAW.  §  203 

When,  however,  from  disease  or  any  other  cause 
the  individual  is  or  has  become  of  unsound  mind, 
as  above  indicated,  he  will  not  be  held  to  his  con- 
tracts, and  those  who  deal  with  him  do  so  at  their 
peril.  One  who  has  been  put  under  guardianship 
as  a  person  of  unsound  mind  is  conclusively  pre- 
sumed to  be  so,  and  his  estate  can  only  be  lawfully 
dealt  with  by  his  legally  appointed  guardian,  who 
acts  for  him  under  the  direction  of  the  court.  As  to 
a  person  who  has  not  been  adjudged  to  be  of  unsound 
mind,  the  question  of  his  mental  capacity,  when  it 
is  in  issue,  is  to  be  tried  as  any  other  question  of 
fact,  the  presumption  in  such  cases  being  that  every 
person  is  sane  until  the  contrary  is  shown.  It  is  not 
necessary  here  to  go  into  a  discussion  of  the  differ- 
ent forms  of  insanity.  We  are  here  concerned  only 
with  that  class  of  persons  who  in  law  are  con- 
sidered to  be  incapable  of  making  valid  contracts. 
Even  a  person  of  unsound  mind  may  in  exceptional 
cases,  as  an  infant  may,  make  binding  contracts, 
viz.,  for  necessaries  suitable  to  his  condition  in  life, 
and  he  will  be  held  to  his  contract  where  he  has 
dealt  with  one  who  in  good  faith  supposed  him  to  be 
sane,  and  has  performed  the  contract  by  paying  the 
consideration  to  him,  if  the  consideration  can  not  be 
restored. 
y~  §  203.  Drunkenness. — Where  a  person  is  so  drunk 
at  the  time  he  makes  a  contract  that  he  does  not  un- 
derstand what  he  is  doing,  such  contract  is  voidable, 
and  may  be  repudiated  or  ratified  by  him  when  he 
becomes  sober.  The  same  exceptions  hold  good  here 
as  in  the  case  of  infants  and  persons  of  unsound 
mind.     A  man  when  he  gets  sober  can   not  hold  on 


§204  PARTIES  TO  CONTRACTS.  121 

to  the  benefits  of  a  contract  made  when  he  was 
drunk,  and  repudiate  the  contract  also.  A  drunken 
man,  as  an  infant  and  lunatic,  may  make  a  valid 
contract  for  necessaries.  Slight  circumstances  will 
be  sufficient  to  ratify  the  contract  of  a  drunken  man. 
A  delay  in  disaffirming  it  if  unreasonable,  or  retain- 
ing the  benefit  after  he  becomes  sober,  will  be  a  suf- 
ficient ratification. 

§  204.  Married  women.— By  the  common  law  mar- 
ried women  could  not  make  valid  contracts.  The  ex- 
tension of  the  rights  of  women  in  most  of  the  states 
of  the  Union  has  practically  emancipated  them  from 
the  restraints  of  the  common  law.  In  the  two  states  of 
Wyoming  and  Colorado  women  have  the  right  of  suf- 
frage equal  with  men.  In  Kansas  they  vote  at  munici- 
pal elections.  In  other  states  they  vote  on  questions 
concerning  local  school  management,  and  in  nearly 
all  the  states  they  have  the  control  and  management 
of  their  separate  estates,  and  as  to  such  matters  the 
married  woman  is  put  upon  an  equal  footing  with  an 
unmarried  woman,  or  with  her  husband.  Nearly 
every  session  of  our  state  legislatures  witnesses  some 
innovation  upon  the  rules  of  law  which  have  re- 
strained her  liberty  in  dealing  with  her  property.  So 
that  it  would  be  foolish  here  to  attempt  to  state  the 
extent  or  limitations  upon  the  powers  of  married 
women  in  the  matter  of  contracts.  To  ascertain  what 
these  are  recourse  must  be  had  to  the  statute  laws  of 
the  several  states. 

§  205.  Corporations. — The  power  of  a  corporation 
to  make  contracts  is  limited  by  the  charter  creating 
it,  or,  where  it  is  organized  under  a  general  law,  by 
the  terms  of  that  law.      A  contract  entered  into  by  a 


122  ELEMENTARY  LAW.  §  206 

corporation  beyond  the  power  so  conferred  is  void. 
It  is  manifest  that  a  corporation,  being  an  artificial 
person,  can  only  contract  by  and  through  its  agents, 
and  the  powers  of  these  agents  are  determined  by  the 
laws  of  the  state,  or  the  articles  and  by-laws  of  the 
corporation,  or  they  may  be  implied  from  the  nature 
and  functions  of  the  officer  or  agent  who  acts  for  the 
corporation.  It  was  an  old  rule  of  law  that  a  corpo- 
ration could  only  contract  under  its  corporate  seal, 
but  the  necessities  of  commerce  have  led  to  an  abro- 
gation of  the  rule,  so  now  it  may  be  said  that  within 
its  powers  to  make  contracts  it  may  make  them  in  any 
manner  that  a  partnership  or  natural  person  may.  It 
hasbeensaid  thata  contractof  a  corporation  not  within 
its  charter  or  lawful  powers  is  void,  but  this  must 
be  understood  with  the  equitable  qualification  that 
where  such  contract  has  been  executed  so  that  the 
corporation  has  received  the  consideration,  and  is 
unwilling  or  unable  to  return  it,  it  will  not  be  heard 
to  deny  the  validity  of  the  contract.  If  it  would  re- 
scind, it  must  first  do  equity. 

§  206.  Contracts  by  agents. — Individuals  and  cor- 
porations are  bound  by  contracts  made  in  their  behalf 
by  their  authorized  agents.  The  necessities  of  com- 
merce demand  that  most  of  the  business  of  the  world 
be  done  through  agents.  Any  one  capable  of  acting 
for  himself  may  be  an  agent;  a  minor  of  sufficient 
capacity  may  be  an  agent  and  make  contracts  which 
will  bind  his  principal.  The  relation  of  principal 
and  agent  may  be  created  by  writing,  by  parol,  or  it 
may  be  implied  from  circumstances.  An  agent  can 
not  assume  incompatible  duties;  he  can  not  be  agent  of 
buyer  and  seller  at  the  same  time,  unless  by  consent 


§  207  PARTIES  TO  CONTRACTS.  123 

of  both  principals,  nor  can  he  be  employed  to  do  an 
unlawful  act,  nor  to  act  in  place  of  another  in  a  mat- 
ter of  personal  trust.  An  attorney,  an  author,  an 
artist,  a  physician,  whose  personal  skill  is  engaged, 
can  not  substitute  an  agent  to  do  his  work.  So  gen- 
erally an  agent  can  not  employ  a  substitute,  unless 
expressly  or  impliedly  authorized  to  do  so.  When, 
however,  the  nature  of  the  employment  and  the  mag- 
nitude and  character  of  the  business  calls  for  it,  he 
may  employ  assistants  whose  acts  will  bind  his  princi- 
pal. An  attorney  at  law,  an  attorney  in  fact,  a 
broker,  an  auctioneer,  a  factor,  a  partner,  a  ship's 
master,  a  ship's  husband,  these  are  all  agents  having 
power  to  bind  their  principals  in  matters  coming 
within  the  scope  of  their  respective  employments. 
An  attorney  at  law  is  an  agent  employed  to  conduct 
and  manage  an  action  at  law  or  suit  in  equity.  An 
attorney  in  fact  is  one  who  is  by  a  power  of  attorney 
authorized  to  do  some  specific  act  or  acts  for  his 
principal.  A  broker  is  one  whose  business  it  is  to 
bring  together  parties  who  desire  to  deal  with  one 
another;  he  is  the  agent  of  both  parties  and  he 
receives  by  way  of  compensation  a  commission.  An 
auctioneer's  business  is  to  act  for  seller  and  buyer  in 
selling  goods  at  public  outcry.  When  a  sale  is  closed 
he  can  bind  both  parties  by  signing  a  memorandum 
of  the  terms.  A  factor  or  commission  merchant  is 
one  who  sells  goods  for  persons  who  make  consign- 
ments to  him. 

§  207.  A  ship's  husband  is  one  employed  by  the  own- 
ers to  manage  the  affairs  of  the  ship  while  it  is  at  a  home 
port.  A  ship's  master  has  similar  charge  of  the  ship 
and  its  affairs  while  prosecuting  its  voyage.     Partners 


124  ELEMENTARY  LAW.  §  208 

are  mutual  agents  for  one  another  in  all  matters  per- 
taining to  the  conduct  of  the  partnership  business. 
An  agent  may  act  generally  in  some  particular  busi- 
ness, in  which  case  he  has  a  liberal  discretion,  or  he 
may  be  employed  to  do  a  specific  thing  in  a  pre- 
scribed way,  in  which  case  he  is  a  special  agent. 
Where  the  authority  under  which  an  agent  assumes 
to  act  is  in  writing  the  court  must  construe  it  and 
determine  its  extent;  where  the  agency  is  created  by 
parol  or  is  implied  from  circumstances  it  is  for  the 
jury  to  determine  whether  a  given  act  was  or  was  not 
authorized  by  the  principal.  An  authority  to  do  a 
certain  thing  carries  with  it  an  authority  to  make  use 
of  all  the  usual  and  necessary  means  to  effectuate 
the  purpose  intended,  as  where  an  agent  is  author- 
ized to  sell  property  he  may  receive  the  money;  if  he 
is  to  settle  losses  with  an  insurance  company  he  may 
arbitrate  the  claims;  if  he  is  to  sell  a  chattel  he  may 
warrant  it  as  to  quality  and  soundness — in  short,  the 
authority  of  an  agent  covers  all  the  settled  usages  of 
trade  which  pertain  to  the  business  of  his  agency. 

§  208.  Where  persons  dealing  with  an  agent  know 
that  his  authority  is  in  writing,  they  are  bound  by 
its  terms,  whether  they  see  fit  to  examine  it  or  not. 
If  an  agent  has  a  written  authority,  his  principal 
can  not,  by  private  or  secret  instructions  to  his  agent, 
change  its  terms  so  as  to  affect  those  who  dealwith  him. 
It  sometimes  happens  that  the  authority  is  ambiguous 
in  its  terms,  and  the  agent  has  no  opportunity  to 
consult  his  principal.  If  he  misconstrues  the  au- 
thority in  good  faith,  his  principal  is  bound  by  his 
act.  •  It  is  competent  for  the  principal  to  enlarge  the 
agent's  authority  by  subsequent  parol  instructions. 


§209  PARTIES  TO  CONTRACTS.  125 

And  if  a  principal  by  words  or  acts  induces  other-  to 
believe  that  the  agent's  authority  is  greater  than  is 
expressed  in  the  terms  of  the  appointment,  lie  will 
be  bound  by  the  agent's  acts  to  the  extent  that  his 
conduct  has  led  others  to  deal  with  his  agent.  The 
authority  of  the  agent  is  more  liberally  construed 
when  it  is  to  be  gathered  from  irregular  correspond- 
ence, or  the  conduct  of  the  parties,  than  where  it  is 
particularly  defined  by  a  written  instrument  pre- 
pared for  the  purpose.  If  an  agent  acts  in  .excess 
of  his  authority,  his  act  may  be  ratified  by  the  ac- 
quiescence of  the  principal.  If  by  the  usages  of  a 
bank  or  a  merchant,  cashiers  or  other  employes  are 
allowed  to  indorse  paper  and  do  other  acts  in  further- 
ance of  the  business  in  which  they  are  engaged,  the 
principal  will  be  bound.  Declarations  of  an  agent 
concerning  the  transaction  in  which  he  is  acting  for 
his  principal  will  be  binding  on  the  principal,  if 
made  at  the  time  and  as  a  part  of  the  transaction. 
But  after  the  business  is  closed,  the  agent  can  make 
no  such  binding  declarations.  Factors  and  ships' 
masters  may  in  case  of  urgent  need  dispose  of  per- 
ishable goods,  in  a  way  not  authorized  by  the  owner. 
They  may  also  incur  liabilities  that  will  create  a  lien 
upon  the  goods  and  fix  a  personal  responsibility  up- 
on their  principal  also. 

§  209.  The  duties  of  an  agent  can  not  ordinarily 
be  delegated.  In  making  contracts  for  his  principal, 
he  should  disclose  the  fact  that  he  is  an  agent,  other- 
wise the  person  who  deals  with  him  without  a  knowl- 
edge of  that  fact  may  treat  him  as  a  principal.  An 
agent  who  takes  employment  from  another  contracts 
for  the  use  of  reasonable  skill  and  diligence  in  con- 


126  ELEMENTARY  LAW.  §  209 

ducting  the  business  of  his  principal,  and  if  loss 
occurs  from  the  fraud  or  insolvency  of  a  customer, 
he  will  not  be  liable,  if  he  exercised  such  skill  and 
diligence.  He  is  chargeable  with  all  profits  he  may 
make  on  investments  of  his  principal's  money,  and 
if  he  fails  to  account  promptly  for  moneys  received, 
he  may  be  chargeable  with  interest. 

The  contract  of  agency  may  be  determined :  ( 1 ) 
By  the  expiration  of  the  time  limited  by  the  employ- 
ment. (2)  Principal  may  revoke  it,  except  in  cases 
where  the  agent  has  an  interest  in  the  business. 
(3)  By  the  agent  renouncing  the  agency.  (4)  By 
death,  bankruptcy,  or  insanity  of  principal.  (5) 
By  destruction  of  subject-matter,  as  where  one  is 
custodian  of  buildings  which  are  destroyed. 


CHAPTER  XVII. 

OF    PARTICULAR    CONTRACTS. 

§  210.  Contracts  of  sale  and  exchange. — Having 
considered  the  nature  of  contracts  in  general,  and 
how  and  by  whom  they  may  be  made,  we  proceed  to 
inquire  into  the  nature  of  particular  contracts,  and 
first  of  contracts  of  sale  and  exchange.  Kent  says  : 
("A  sale  is  a  contract  for  the  transfer  of  property  >  < 
from  one  person  to  another  for  a  valuable  considera- 
tion/) Three  things  are  requisite  for  its  validity:  the 
thing  sold,  which  is  the  object  of  the  contract,  the 
^price,  and  the\consent  of  the  contracting  parties." 
By  the  Roman  law  things  sold  and  delivered  did  not 
become  the  property  of  the  buyer  until  he  had  paid 
the  seller  the  price  or  satisfied  him  in  some  way  or 
other,  as  by  procuring  some  one  to  be  security  or  by 
giving  a  pledge.  But  if  the  seller  accepted  the  credit 
of  the  buyer  the  thing  then  immediately  became  the 
property  of  the  buyer.  And  this  is  practically  the 
law  now  in  all  civilized  countries. 

§211.  The  things  sold _must_  exist.  A  contract  of 
sale  of  a  dead  horse,  which  the  parties  think  is  living, 
is  no  sale.  So  of  the  sale  of  a  house  which  had 
been  destroyed,  if  the  house  and  not  the  land  on 
which  it  was  built  was  the  principal  thing  in  the 
minds  of  the  contracting  parties.  When  goods  are  sold 
there  is  an  implied  warranty  that  the  seller  has  title. 

(127) 


128  ELEMENTARY  LAW.  §211 

There  is  no  warranty  of  title  to  real  estate  sold  unless 
it  is  expressed  in  the  conveyance.  If  one  in  due 
form  contracts  for  the  sale  of  real  estate,  and  refuses 
to  convey,  the  court  at  the  suit  of  the  buyer  will 
compel  the  seller  to  convey,  if  the  buyer  has  per- 
formed or  tendered  performance  of  his  part  of  the 
contract;  or  if  the  buyer  elects  he  may  sue  the  seller 
for  damages.  Except  in  rare  cases,  as  where  the 
contract  is  for  the  sale  of  stock  in  a  corporation, 
courts  will  not  compel  the  seller  of  personal  prop- 
erty to  transfer  it  to  the  buyer,  leaving  the  buyer  to 
his  action  for  damages. 

As  to  the  quality  of  goods  sold  there  is  no  war- 
ranty implied,  except  in  cases  of  sales  by  sample 
there  is  a  warranty  that  the  goods  sold  will  be  of  the 
same  quality  as  the  sample.  There  may  be  latent 
defects  in  the  article  unknown  to  both  parties,  and 
in  such  cases  the  buyer  takes  it  at  his  own  risk,  but 
if  the  seller  knew  of  such  defects  his  concealment  of 
them  might  amount  to  fraud,  which  would  give  the 
buyer  a  right  to  rescind  the  contract  or  sue  for  dam- 
ages. Where  defectej^-q^irty  were  apparent  and 
each  had  equal  means'  of  information,  there  is  no 
fraud,  nor  will  mere  statements  of  opinion  as  to 
value  made  by  the  seller  amount  to  fraud. 

If  in  a  sale  of  several  tracts  of  land  or  several 
horses  at  the  same  time  title  fails  as  to  part,  the 
buyer  can  not  be  held  to  the  contract  unless  he 
waives  his  right  to  object.  Of  course,  if  there  is  a 
total  failure  of  consideration  the  contract  is  void.  If 
parties  are  negotiating  by  letter  for  a  sale,  the  party 
making  the  offer  may  revoke  it  at  any  time  before  it 


§212  OF  PARTICULAR  CONTRACTS.  [29 

isaccepted;  once  accepted,  however,  it  can  not  be  re- 
voked. 

§  212.  Transferof  title.— When  does  the  title  to  the 

thing  sold  pass  from  the  seller  and  vest  in  the  buyer  ? 
When  the  terms  of  the  sale  are  agreed  upon  and  the 
seller  has  performed  his  part  of  the  contract,  from  that 
instant  the  property  is  at  the  risk  of  the  buyer.  So, 
when  the  terms  are  agreed  upon  and  the  buyer  pays 
or  tenders  the  price,  he  is  entitled  to  possession  of  the 
thing  purchased.  These  general  rules  may  be  varied 
by  the  agreement  of  the  parties,  fixing  a  different 
method  of  payment,  postponing  the  time  of  delivery, 
etc.  If  credit  is  given,  the  title  passes  to  the  buyer 
without  payment,  but  if  in  such  case  the  buyer  be- 
comes insolvent  after  the  purchase  and  before  the  thing 
purchased  comes  to  his  possession,  the  seller  may 
reclaim  the  goods,  and  defeat  the  buyer's  title  by  assert- 
ing what  is  called  the  right  of  stoppage  in  transitu. 
§  213.  Delivery. — As  we  have  seen  in  what  has 
been  said  concerning  the  statute  of  frauds,  if  the 
value  of  the  chattel  sold  is  fifty  dollars  or  more,  and 
it  is  not  convenient  to  make  prompt  delivery,  the 
contract  of  sale  may  be  made  binding  b}T  a  memo- 
randum or  by  the  payment  of  part  of  the  purchase- 
money.  And  a  delivery  of  a  part  of  the  goods  sold 
and  an  acceptance  of  them  by  the  buyer  will  bind 
the  bargain.  Even  where  earnest  money  is  given, 
the  balance  of  the  purchase-money  must  be  paid  be- 
fore delivery,  unless  credit  is  given.  Where  noth- 
ing is  said  as  to  the  time  for  payment  and  delivery, 
they  are  both  to  be  done  at  the  same  time.  In  all 
sales  where  anything  remains  to  be  done  by  the 
0 


130  ELEMENTARY  LAW.  §214 

buyer,  such  as  the  giving  of  a  note  or  security  for 
the  purchase-money,  the  property  does  not  vest  in 
the  buyer  until  that  condition  is  performed,  unless 
it  is  waived  by  the  seller.  Delivery  to  the  agaijt  of 
the  buyer,  or  to  a  carrier  for  him,  is  a  good  delivery, 
and  where  no  particular  mode  of  carriage  is  named 
in  the  contract,  the  seller  may  send  the  goods  by  any 
of  the  customary  modes  of  transportation.  There 
may  be  a  symbolical  delivery  of  the  things  sold,  as 
by  giving  the  key  of  the  warehouse  which  contains 
them  to  the  buyer.  Marking  the  goods  sold  with 
the  name  of  the  buyer,  or  setting  them  apart  by  his 
request,  in  a  place  designated  by  him,  may  consti- 
tute a  good  deliver}^  If  n-o_place  for  delivery  is 
.fixed  by  the  contract,  the  rule  is  that  they  are  to  be 
delivered  at  the  place  where  the  contract  is  made,  or 
where  the  goods  sold  are  kept  for  sale.  A  note  pay- 
able in  specific  articles,  as  in  wheat  or  any  other  com- 
modity, must  be  presented  for  payment  at  the  farm 
or  place  of  business  of  the  maker  of  the  note.  Secret 
sales  of  personal  property,  which  is  left  in  the  pos- 
session of  the  seller,  are  not  absolutely  void,  but  the 
retaining  of  possession  by  the  seller  is  a  strong  cir- 
cumstance tending  to  show  that  the  sale  was  a  sham, 
especially  where  the  seller  is  in  debt  and  embarrassed 
at  the  time.  The  federal  courts  hold  that  a  bill  of  sale 
is  fraudulent  as  to  third  persons,  unless  possession  is 
given  to  the  buyer.  The  decisions  of  the  state  courts 
are  not  all  in  harmony  with  this  rule. 

§  214.  Interpretation  of  contracts. — Contracts  are 
to  be  interpreted  according  to  the  manifest  intention 
of  the  parties,  words  being  taken  in  their  popular 
sense.     In  construing  a  written  contract,  if  the  Ian- 


§215  OF  PARTICULAR  CONTRACTS.  131 

guage  is  ambiguous,  the  whole  instrument  is  to  be 

considered  with  all  the  circumstances  surrounding 
the  parties  at  the  time  it  was  made.  If  the  contract 
is  expressed  in  such  vague  and  doubtful  terms,  that 
the  intention  of  the  parties  can  not  be  ascertained 
from  reading  it,  it  is  void. 

§  215.  Contracts  of  bailment.-/-Bailment  is  the 
delivery  of  one's  personal  property  to  another  for  a 
temporary  purpose,  to  be  returned  to  the  owner  when 
the  purpose  is  fulfilled. J  Some  writers  give  five  kinds 
of  bailment,  but  Story's  classification  is  simpler. 
He  gives  three  :  ( 1 )  Bailment  for  the  benefit  of  the 
bailor.  (2)  For  the  benefit  of  the  bailee.  (3)  For 
the  benefit  of  both.  The  degree  of  care  to  be  exer- 
cised by  the  bailor  depends  upon  the  character  of  the 
bailment  and  the  character  of  the  article  bailed.  A 
rflprp.  horrpjvpr  of  another's  property,  who  is  to  make 
no  return  for  the  use  of  it  and  is  a  bailee  for  his  own 
benefit,  is  held  to  the  exercise  of  the  highest  degree 
of  care,  or  extreme  care.  One  who  hires  a  horse 
from  another  is  a  bailee  for  the  benefit  of  both  parties, 
and  is  not  required  to  exercise  so  high  degree  of 
care  as  a  bailee  for  his  own  benefit,  but  the  care  must 
be  such  as  a  prudent  person  would  exercise  with  refer- 
ence to  his  own  property,  or  what  is  called  ordinary 
caxe.  Where  property  is  left  by  the  owner  with  another 
for  safe  keeping,  without  paying  or  agreeing  to  pay 
therefor,  it  is  a  bailment  for  the  exclusive  benefit  of  the 
bailor,  and  only  a  slight  degree  of  care  is  required  of 
the  bailee.  Of  course,  one  is  not  bound  to  become  a 
gratuitous  bailee,  and  a  promise  to  become  such  is 
not  binding,  but  if  goods  are  received  by  a  gratui- 
tous bailee  he  must  care  for  them  according  to  his 


132  ELEMENTARY  LAW.  §  216 

promise.  A  common  carrier  is  a  bailee  who  is  bound 
to  receive  goods  and  deliver  them  where  directed 
without  loss  or  injury  unless  prevented  by  the  act  of 
God  or  the  public  enemy.  A  carrier  who  does  not 
hold  himself  out  to  carry  for  the  public,  but  only 
occasionally  transports  goods  for  hire,  is  not  a  com- 
mon carrier,  and  is  only  held  to  the  exercise  of  ordi- 
nary care.  An  innkeeper  is  a  bailee  who  insures  the 
safety  of  his  guests'  goods,  just  as  a  common  carrier 
does. 

A  mechanic  who  receives  material  to  be  made  into  an 
article,  or  receives  an  article  needing  repairs,  is  a  bailee 
who  is  bound  to  use  reasonable  diligence  in  complet- 
ing the  work  and  restoring  the  article  to  the  owner. 
He  may,  however,  demand  pay  for  his  work  and 
keep  possession  of  the  article  until  his  reasonable 
charges  are  paid.  A  warehouseman  is  a  bailee  who 
can  retain  possession  of  property  put  in  his  care  until 
his  storage  charges  are  paid.  A  pledgee,  or  a  pawn- 
broker, is  a  bailee  who  holds  personal  property  as 
security  for  a  debt,  and  may  retain  it  until  the  debt 
is  paid  or  payment  tendered.  If,  after  a  bailee  has 
received  property,  a  third  party  claims  it,  the  bailee 
may  refuse  to  deliver  to  either  until  the  controversy 
is  settled  between  the  rival  claimants,  and  he  may 
bring  his  action  of  interpleader,  in  which  the  claim- 
ants may  be  required  to  come  into  court  and  try  the 
question  of  the  title  or  right  to  possession  of  the  prop- 
erty in  the  possession  of  the  bailee. 

§  216.  Common  carriers. — The  contracts  of  com- 
mon carriers  relate  to  persons,  as  well  as  personal 
property,  and  the  subject  of  their  rights  and  liabili- 
ties calls  for  a  more  extended  treatment  than  could  be 


§  216  OF  PARTICULAR  CONTRACTS. 

properly  given  to  it  under  the  head  of  bailment.  Kail- 
way,  steamboat  and  ship  companies,  and  all  other  pub- 
licagencies  for  transporting  goods  or  persona  for  hire, 
are  in  law  common  carriers.  The  contract  of  a  c 
mon  carrier  of  goods  is  to  receive  and  promptly  trans- 
port the  property  entrusted  to  him,  to  the  place  of 
destination,  he  being  responsible  for  all  loss  or  dam- 
age which  happens  to  the  goods  while  in  his  can'. 
unless  such  loss  or  damage  is  caused  by  the  act  of 
God  or  the  public  enemy.  As  a  carrier  of  persons, 
he  is  held  to  the  highest  degree  of  care  for  their 
safety.  By  holding  himself  out  as  a  common  carrier 
of  passengers,  he  undertakes  to  receive  all  proper 
persons  who  present  themselves  for  transportation, 
and  to  carry  them  safely  to  their  destination,  upon 
their  paying  or  tendering  to  him  the  customary  fare 
for  such  service.  And  if  he  receives  as  a  passenger 
one  who  is  to  be  carried  gratuitously,  he  must  ex- 
ercise the  same  care  for  such  passenger  as  if  he  paid 
full  fare.  The  same  obligation  as  to  care  applies  to 
persons  whom  he  receives  from  other  connecting 
lines  of  transportation,  and  to  travelers  who  get  upon 
the  wrong  railway  train  by  mistake.  Carriers  are 
not  insurers  of  the  safety  of  their  passengers.  If  the 
passenger  is  injured  or  killed,  through  unavoid- 
able accident,  as  where  injury  or  death  results  from 
defects  in  machinery  or  appliances  which  could  nol 
have  been  discovered  by  the  exercise  of  the  highesl 
degree  of  care,  or  if  the  injury  or  death  results  from 
the  act  of  God,  as  where  by  a  tornado  an  obstruction 
is  thrown  in  front  of  a  locomotive  engine,  the  carrier 
is  not  liable,  unless  there  is  some  concurring  negli- 
gence on  his  part.     Ordinarily,  a  passenger  who  is 


234  ELEMENTARY  LAW.  §  217 

injured  by  a  third  person,  not  in  the  employ  of 
the  carrier,  has  no  claim  upon  the  carrier,  but  if, 
through  the  negligence  of  the  carrier's  employes,  a 
dangerous  person,  as  a  lunatic  or  a  drunken  man, 
kills  or  injures  a  fellow  -  passenger,  the  carrier  is 
liable.  The  carrier  has  a  right  to  make  reasonable 
rules  regulating  the  conduct  of  passengers,  and  if 
a  passenger  with  notice  of  these  rules  violates  them 
and  puts  himself  in  a  place  of  danger,  and  injury  re- 
sults to  him  on  account  of  his  misconduct,  he  has 
no  claim  for  damages. 

§  217.    Contracts  of  partnership.— Partnership,  as 
denned  by  Kent,  "is  a  contract  of  two  or  more  per- 
sons to  place  their  money,  effects,  labor  and  skill,  or 
some  or  all  of  them,  in  lawful  commerce  or  business, 
and  to  divide  the  profit  and  bear  the  loss  in  certain 
proportions. "     As  we  have  seen  in  stating  the  princi- 
ples of  the  contract  of  agency,  each  partner  is  the 
general  agent  for  all  the  others,  and  may  bind  them 
by  any  contract  which  he  may  make  within  the  scope 
of  the  partnership  business.     If  a  member  of  a  firm 
of  dry-goods  merchants  buys  real  estate  for  purposes 
of  speculation  in  the  firm  name,  it  will  not  bind  his 
copartners,  and  so  of    all    ventures  not  within  the 
scope  of  the  firm's  business.     As  between  the  part- 
ners themselves  they  may  limit  the  powers  and  fix 
the  duties  of  one  another  by  agreement,  and  a  viola- 
tion of  such  agreement  resulting  in  loss  to  the  other 
partners  would  make  the  wrong-doer  liable  in  dam- 
ages to   his  copartners.     A  nominal  partner  is  one 
who  allows  his  name  to  be  used  by  the  firm,  but  has 
no  interest  in  the  profits;  his  liability  for  the  firm's 
debts,  however,  is  the  same  as  that  of  the  real  mem- 


§218  OF  PARTICULAR  CONTRACTS.  [35 

bera  of  the  firm.  A  silent  partner  is  one  who  has 
an  interest  in  the  firm  which  is  unknown  to  the 
public.  He  may  share  in  the  profits,  and  he  is  liable 
for  all  the  debts  of  the  firm.  When  a  partner  n 
from  the  firm  and  wishes  to  avoid  future  liability  for 
its  debts,  he  must  give  actual  notice  of  the  fact  to  all 
customers  of  the  firm,  and  notice  to  the  public  by 
printing  the  same  in  some  newspaper  of  general 
circulation  in  the  locality  where  the  business  has 
been  conducted.  If  one  holds  himself  out  as  a  part- 
ner, and  persons  deal  with  the  firm  on  the  faith  of 
it,  he  is  held  liable  to  such  persons  for  the  firm  debts, 
though  he  was  not  a  partner  in  fact. 

§  218.  Formation  of  partnership. — To  form  a  part- 
nership it  is  not  necessary  that  the  contract  should 
be  in  writing,  and  if  there  is  no  agreement  to  the 
contrary,  the  partners  are  presumed  to  be  equal,  and 
the  partnership  is  presumed  to  begin  at  the  date  of 
the  agreement.  Partnership  contracts  may  be  made 
for  the  carrying  on  of  any  lawful  business.  Ine- 
quality of  skill,  industry,  ability,  or  attention  to  the 
business  will  not  increase  or  diminish  a  partner's 
share  of  the  profits  unless  the  agreement  between  the 
partners  makes  provision  for  it,  and  unless  it  is  so 
agreed  no  partner  is  entitled  to  anything  but  hia 
share  of  the  profits  as  a  compensation  for  his  sit\ -i. ><  3. 
One  may  sometimes  share  in  the  profits  without  in- 
curring liability  as  a  partner,  as  where  a  salesman  or 
an  agent  agrees  to  take  as  a  compensation  for  his 
services  a  sum  equal  to  a  certain  per  cent,  of  the 
profits. 

§  219.  Rights  of  partners. — Partners  can  not  deal 
with  the  partnership  property  for  their  individual 


136  ELEMENTARY  LAW.  §  220 

benefit  to  the  injury  of  the  creditors  of  the  firm  or 
of  their  copartners.  If  one  partner  has  made  ad- 
vances or  incurred  liabilities  for  the  firm,  his  claim 
upon  the  firm's  assets  and  property  will  have  priority 
over  a  chattel  mortgage  given  by  another  partner  to 
secure  his  individual  debt. 

§  220.  Dissolution  of  partnership. — A  partnership 
may  be  dissolved  in  various  ways,  as:  (1)  By  the 
death  of  one  of  the  partners.  Sometimes  the  arti- 
cles of  partnership  provide  that  the  representative  of 
the  deceased  partner  may  continue  the  business,  or 
that  the  capital  of  the  deceased  partner  shall  remain 
for  a  limited  time  in  the  firm  business.  (2)  By  the 
transfer  of  the  interest  of  one  partner.  (3)  By 
the  voluntary  withdrawal  of  a  partner  from  the  firm. 
Though  the  partnership  agreement  may  fix  the 
duration  of  the  partnership,  any  partner  may  dis- 
solve it  by  retiring  before  the  expiration  of  the  time. 
If  his  conduct  in  so  doing  is  wrongful  and  results  in 
loss  to  his  copartners,  they  may  recover  damages 
from  him  for  breach  of  his  contract.  (4)  Insanity 
or  insolvency  of  a  partner.  (5)  By  the  mutual  con- 
sent of  the  partners.  (6)  The  sale  of  the  whole 
property  invested  in  the  partnership  business.  (7) 
The  hopeless  insolvency  of  the  firm.  (8)  The  oc- 
currence of  some  event  which  makes  the  business  of 
the  partnership  illegal.  The  court  may  decree  a 
dissolution  at  any  time  when  the  interest  of  the 
partners  or  the  firm  creditors  require  it. 

§  221.  The  practical  effect  of  the  dissolution,  from 
whatever  cause,  is  the  same.  If  the  partners  can 
agree  upon  a  method  of  winding  up  the  business 
after  dissolution,  and  creditors  do  not  object,  it  may 


§222  OF  PARTICULAR  CONTRACTS.  137 

be  done  in  that  way.  If  creditors  or  any  par: 
objects  the  court  will  appoint  a  receiver,  whose  duty 
it  will  be  to  sell  the  assets,  pay  the  creditors  and  ex- 
penses of  the  receivership,  and  distribute  the  surplus 
among  the  partners  according  to  their  respective  in- 
terests. 

§  222.  Where  a  dissolution  results  from  the  death 
of  one  of  the  partners,  the  surviving  partners  are 
clothed  by  the  law  with  authority  to  settle  the  firm's 
affairs,  and  the  personal  representatives  of  the  de- 
ceased partner  can  not  meddle  with  the  linn's  affairs 
unless  there  is  mismanagement  on  the  part  of  the 
surviving  partners.  Most  of  the  states  have  statutes 
providing  for  the  settlement  of  the  partnership  busi- 
ness by  surviving  partners,  requiring  them  to  file 
inventories  in  court,  to  give  bond,  and  to  make  re- 
ports of  their  doings,  as  in  ease  of  administrators  and 
executors. 

§  223.  Individual  and  partnership  creditors. — 
Questions  arise  concerning  the  conflicting  claims  of 
the  creditors  of  the  firm  and  the  individual  partners  to 
participate  in  the  assets  of  the  partnership,  and  of 
the  partners  individually.  The  equitable  rule  is  fol- 
lowed in  all  the  courts,  that  firm  creditors  must  look 
first  to  firm  assets,  and  individual  creditors  to  the 
assets  of  the  individual  members  of  the  firm.  If 
there  is  a  surplus  of  the  firm  assets  after  paying 
firm  creditors,  and  a  deficiency  of  individual  assets 
to  pay  individual  creditors,  these  creditors  may  re- 
sort to  the  share  of  the  surplus  which  would  be  go- 
ing to  the  partner  against  whom  they  hold  unsatis- 
fied claims;   so  may  firm  creditors,  after  exhausting 


138  ELEMENTARY  LAW.  §  224 

firm  assets,  resort  to  what  may  remain  of  individual 
assets  after  the  discharge  of  individual  debts. 

§  224.  Rights  of  partners  after  dissolution. — The 
dissolution  of  the  firm  puts  an  end  to  the  power  of 
the  partners  to  bind  their  copartners  to  any  new  en- 
gagements, except  so  far  as  it  may  be  necessary  or 
proper  in  closing  up  the  firm's  business.  Where  one 
partner  retires  and  the  remaining  partners  assume 
the  firm  debts,  the  retiring  partner  may  be  held  by 
the  creditors,  but  if  he  is  compelled  to  pay  he  would 
have  the  same  rights  against  his  former  partners  that 
a  surety  who  had  paid  a  debt  would  have  against 
his  principal. 

§  225.  Limited  partnership. — We  have  been  speak- 
ing of  general  partnerships,  in  which  each  and  all  of 
the  partners  are  individually  liable  for  all  the  debts  of 
the  firm.  Limited  partnerships  are  creatures  of 
statutory  law.  They  are  partnerships  in  which  the 
pecuniary  responsibility  of  some  of  the  partners  is 
limited  to  a  fixed  sum.  Persons  wishing  to  embark 
their  means  in  such  ventures  are  required  to  comply 
strictly  with  the  provisions  of  the  law  authorizing 
their  formation. 

§  226.  Good-will. — The  good-will  of  the  partner- 
ship goes  to  the  surviving  partners  in  case  of  dis- 
solution by  death,  and  where  one  partner  disposes  of 
his  interest  to  his  copartners,  his  interest  in  the 
good-will  goes  with  it. 


CHAPTER  XVIII. 

NEGOTIABLE  INSTRUMENTS. 


Contracts  in  the   form  of  bills  of   exchange  and 
promissory  notes  will  now  be  considered. 
'    §227.    Definitions. — The  old  definition  of  a  bill  of 
exchange,  which  is  approved  by  Kent,  is  as  follows: 

A  bill  of  exchange  is  a  written  order  or  request  by 
one  person  to  another,  for  the  payment  of  money  at 
a  specified  time,  absolutely  and  at  all  events. 

Story  defines  a  promissory  note  as  : 

A  written  engagement  by  one  person  to  pay  an- 
other therein  named  absolutely  and  unconditionally 
a  certain  sum  of  money  at  a  time  specified  therein. y 

§  228.  Origin  of  law  merchant. — Bills  of  exchange 
which  were  first  used  by  the  bankers  and  merchants 
of  Florence  and  Venice,  to  facilitate  the  transfer  of 
credits  between  distant  points,  came  to  England 
through  France  early  in  the  fourteenth  century.  Ne- 
gotiable notes  did  not  come  into  use  in  England  un- 
til about  two  hundred  years  ago.  Embarrassments 
arose  in  the  application  of  the  common  law  of  Eng- 
land to  these  forms  of  contract,  and  it  was  after  a 
long  struggle  that  the  courts  engrafted  upon  the  com- 
mon law  the  law  merchant,  by  which  the  parties  to 
bills  and  notes  are  put  upon  a  footing  entirely  differ- 
ent from  that  of  parties  to  other  contracts. 

Promissory  notes  are  negotiable  or  non-negotiable, 
according  to  the  laws  of  the  various  states  where 
they  are  made  or  are  to  be  paid. 

(139) 


140  ^ELEMENTARY  LAW.  §  220 

Some  statutes  require  that  the  note,  to  be  negoti- 
able according  to  the  law  merchant,  must  be  payable 
to  the  order  of  the  payee;  some  that  it  must  be  pay- 
able to  his  order  and  at  a  bank  of  discount  and 
deposit.  Some  authorities  hold  that  a  promissory 
note  is  negotiable,  without  the  phrases  "or  order" 
or  "  to  the  order."  Notes  payable  to  bearer  are  ne- 
gotiable by  delivery. 

§  229.  Foreign  and  inland  bills. — A  foreign  bill 
of  exchange  is  one  that  is  drawn  in  one  state  or 
country  and  payable  in  another,  and  the  several 
states  of  the  Union  are  foreign  to  one  another  in  this 
respect. 

An  inland  bill  of  exchange  is  one  that  is  drawn 
and  payable  in  the  same  state  or  country. 

§  230.  The  parties  to  a  bill  of  exchange  may  be  the 
drawer,  who  is  the  maker;  the  drawee,  the  person  who 
is  requested  to  pay  it;  the  payee,  to  whom  by  the 
terms  of  the  bill  it  is  to  be  paid.  We  give  a  simple 
form  of  a  bill  with  the  three  parties  named  : 

$500.00.  New  York,  May  1,  1895. 

At  sight  pay  John  Jones  (payee)  or  order  five  hun- 
dred dollars,  value  received,  and  charge  same  to 
account  of  John  Smith  (drawer). 

To  Richard  Roe  (drawee),  Philadelphia. 

§  231.  Indorsement. — If  John  Jones,  the  payee, 
wishes  to  transfer  the  bill  he  does  so  by  simply  writ- 
ing his  name  on  the  back  of  it  and  delivering  it  to 
the  person  to  whom  he  transfers  it,  and  this  new 
party,  so  long  as  he  keeps  the  paper,  is  the  indorsee 
or  holder.      If  he  in  turn  wishes   to    transfer  it,   he 


§232  NEGOTIABLE  INSTRUMENTS.  ]4l 

writes  his  name  on  the  back  and  gives  it  to  the  pur- 
son  to  whom  he  transfers  it,  in  which  case  he  loses 
his  character  as  indorsee  and  holder  and  becomes  an 
indorser,  and  the  person  to  whom  he  transfers  the 
paper  becomes  the  indorsee  and  holder. 

§  232.  Duty  of  the  holder.— It  is  the  duty  of  the 
holder  of  the  bill,  whether  he  be  payee  or  indorsee, 
to  promptly  present  it  to  the  drawee  for  payment,  if 
it  is  payable  at  "  sight,"  or  to  present  it  to  him  for 
acceptance  if  it  is  a  time  bill,  that  is,  payable  ar  a 
future  date.  If  the  bill  is  accepted  the  drawee  evi- 
dences his  acceptance  by  writing  across  the  fact  of 
the  bill  the  word  "  accepted,''  and  signing  his  name 
under  it.  If  when  presented  to  the  drawee  he  re- 
fuses to  pay  or  accept  the  bill,  it  becomes  the  duty  of 
the  holder  to  have  it  protested;  that  is  done  by  a 
notary  public  who  presents  it  for  payment  or  accept- 
ance at  the  place  where  it  is  payable  in  business  hours, 
and  upon  acceptance  or  payment  not  being  made, 
he  protests  the  bill  and  makes  a  certificate,  attested 
D)'  his  signature  and  notarial  seal,  showing  the  fact 
of  presentment  and  non-acceptance  or  non-payment, 
as  the  case  maybe.  Notice  in  writing  of  protest 
must  be  promptly  given  by  the  notary  to  the  drawers 
and  indorsers,  if  any,  in  order  to  fix  their  liability 
to  the  holder.  If  the  bill  is  not  presented  in  time, 
and  if  notice  of  non-acceptance  or  non-payment  and 
protest  is  not  promptly  given,  the  drawer  and  in- 
dorsers are  discharged  from  liability,  unless  by  the 
terms  of  the  bill  presentment,  demand  and  protest 
are  waived. 

§  233.  Special  indorsements. — The  form  of  in- 
dorsement, and  the  rights  and  liabilities  of  indorsers 


142  ELEMENTARY  LAW.  §  234 

and  indorsees,  are  not  alwa}rs  the  same.  By  an  in- 
dorsement "  without  recourse,"  the  indorser  engages 
that  the  instrument  is  the  valid  obligation  of  those 
whose  names  are  upon  it  and  that  he  has  the  right 
to  indorse  it,  but  does  not  warrant  the  solvency  of 
any  of  the  parties  to  the  bill.  By  an  indorsement 
in  blank  the  indorser  makes  himself  liable  to  any 
one  who  comes  into  possession  of  the  bill  honestly. 
If  his  indorsement  is  special  as  to  a  particular  per- 
son, he  is  only  liable  to  the  person  named  or  to  the 
indorsee  of  the  person  named  and  those  claiming 
through  him. 

§  234.  Signatures  and  date. — A  note  or  bill  of  ex- 
change must  be  in  writing  and  signed  ;  the  initials 
or  a  mark  will  be  a  good  signature,  and  it  is  imma- 
terial where  the  signature  is  placed;  the  party  making 
it  will  be  bound  according  to  his  intent.  A  date  is 
not  essential,  and  if  there  is  a  blank  for  a  date  any 
holder  in  good  faith  may  fill  it.  Until  a  note  is 
delivered  it  has  no  force.  Indorsements  are  pre- 
sumed to  be  of  the  date  of  the  note,  but  the  real  date 
is  matter  for  proof. 

§  235.  Certainty. — We  have  seen  that  the  promise 
to  pay  must  be  without  condition,  and  if  conditions 
are  annexed  the  paper  is  not  negotiable  by  the  law 
merchant.  It  must  be  for  the  payment  in  money.  A 
promise  to  pay  in  grain  or  any  other  specific  article 
is  not  a  negotiable  note.  The  time  of  payment  must 
also  be  certain;  it  may  be  fixed  by  any  event  which 
is  sure  to  occur,  as  the  event  of  one's  death;  if 
payable  on  demand  it  is  due  instantly.  So  it  is  nec- 
essary that  the  place  of  payment  should  be  certain. 
If  no  place  is  named  then  the  place  where  the  maker  or 


§236  NEGOTIABLE  INSTRUMEN1  143 

drawee  resides  is  presumed  to  be  meant.     The  amount 
to  be  paid  must  be  certain.     If  the  amount  i- 
pressed  in  figures  and  in  writing  and  they  differ,  the 
writing  controls.      , 
*4  §  230.   Surety,  guarantor,  indorser  and  assignor. 

— In  addition  to  the  original  parties  to  negotiable  in- 
struments, the  following  may  become  liable  thereon, 
viz.,  surety,  indorser,  guarantor,  or  assignor.  The 
rights  and  obligations  of  each  are  different. 

A  surety  is  generally  a  co-maker,  and  his  promise 
is  to  meet  an  obligation  which  becomes  his  own  the 
moment  the  principal  fails  to  meet  it.  A  surety  is 
liable  as  much  as  the  principal  is  liable,  and  he 
may  be  sued  as  a  promisor.  He  is  entitled,  how- 
ever, to  have  the  principal's  property  first  exhausted 
for  payment  of  the  obligation. 

A  guarantor's  promise  is  to  pay  the  debt  of  the 
principal,  if  by  the  exercise  of  due  diligence  the 
debt  can  not  be  made  out  of  the  principal.  He  is 
entitled  to  notice  of  the  non-payment  within  a  reas- 
onable time,  but  is  not  discharged  from  liability  by 
delay  in  the  notice,  unless  actually  damaged  thereby. 

An  indorser  contracts  to  be  directly  liable,  but 
only  upon  condition  of  due  presentment  of  the  bill  or 
note  on  the  exact  day  of  its  maturity,  and  due  notice 
of  its  dishonor.  Failure  in  either  particular  dis- 
charges him  absolutely  from  liability,  whether  he  be 
damaged  or  not  by  the  failure. 

An  assignor  of  a  negotiable  instrument  is  one  who 
passes  the  title  by  mere  delivery,  without  writing  his 
name  upon  it.  This  may  happen  when  the  instru- 
ment is  payable  to  bearer  or  indorsed  in  blank.  The 
assignor  does  not  promise  that  the  obligation  shall  be 


144  ELEMENTARY  LAW.  §  237 

paid,  but  lie  warrants  that  he  knows  no  facts  that 
will  prove  the  instrument  to  be  valueless. 

In  addition  to  the  distinctive  obligation  of  each, 
the  indorser  and  the  assignor  each  warrants  :  (1) 
That  the  instrument  is  genuine,  (2)  that  it  is  valid, 
(3)  that  prior  parties  are  competent,  and  (4)  that  he 
himself  has  lawful  title  to  the  instrument  and  right 
to  transfer  it. 

§  237.  Law  of  the  place. — Where  a  bill  or  note  is 
made  in  one  place  and  is  payable  in  another,  the 
law  of  the  place  of  payment  fixes  the  rights  of  the  par- 
ties. Where  money  payable  in  one  state  is  secured 
by  a  mortgage  upon  land  in  another,  it  is  difficult  to 
determine  what  law  controls.  Where  it  is  attempted 
to  enforce  payment  by  foreclosure,  the  general  rule, 
in  the  absence  of  statutes  to  the  contrary,  is  that  the 
rights  of  the  parties  as  to  the  rate  of  interest  are 
ascertained  by  reference  to  the  law  of  the  place  of 
payment,  but  that  in  all  that  relates  to  the  enforce- 
ment of  the  remedy,  the  law  of  the  place  where  the 
mortgaged  property  is  situated  will  control. 

§  238.  Agents. — In  the  execution  of  notes  by  an 
agent,  he  should  take  care  that  he  does  not  bind 
himself  personally,  and  to  avoid  this  he  should 
always  sign  the  name  of  his  principal,  and  append 
to  that  his  own  name,  with  letters  or  words  desig- 
nating himself  as  agent.  So  partners  giving  notes 
in  the  firm's  business  should  always  sign  by  the 
firm  name.  If  a  note,  negotiable  in  form,  is  signed 
and  delivered  to  another,  with  the  amount  and  date, 
names  of  drawee,  payee,  etc.,  left  blank,  the  person 
to  whom  it  is  delivered  is  the  agent  of  the  maker  to 
fill  the  blanks. 


§239  NEGOTIABLE  INSTRUMENTS.  145 

§  239.  Capacity  of  parties. — As  to  the  capacity  of 
persons  to  make  and  indorse  notes  and  bills,  and  the 
effect  of  the  various  forms  of  legal  disability,  as  in- 
fancy, insanity  and  the  like,  upon  the  rights  of  the 
parties,  it  is  enough  to  say  that  the  general  rules 
governing  contracts  heretofore  stated  will  apply. 

§  240.  Consideration. — As  between  the  original 
parties  to  a  note  or  bill,  some  legal  consideration  is 
necessary  to  support  it,  but  the  obligation  assumed  by 
an  indorser  for  the  accommodation  of  one  of  the 
parties,  by  its  very  nature  has  no  consideration  to 
support  it.  If  the  accommodation  indorser  is  obliged 
to  take  up  or  pay  the  note  or  bill,  he  has  a  right  of 
action  against  all  prior  parties  who  are  liable  on  the 
paper. 

§  241.  Purchase  for  value  without  notice. — It  is 
a  distinctive  quality  of  a  negotiable  instrument  that 
if  before  it  is  due  it  comes  into  the  hands  of  an  in- 
nocent purchaser  for  value,  he  takes  it  free  from  any 
defenses  or  equities  that  may  exist  between  prior 
holders  or  the  original  parties,  respecting  the  title, 
the  amount  or  the  consideration.  Though  the  in- 
strument be  stolen,  though  the  maker  may  have 
claims  against  some  prior  holder,  though  the  instru- 
ment be  procured  by  fraud,  be  paid,  or  have  no  con- 
sideration, or  involve  usury — such  defects  perish 
with  the  transfer,  so  far  as  the  innocent  holder  is 
concerned.  Other  defenses,  such  as  forgery,  altera- 
tion, infancy,  etc.,  may  be  made  by  the  party  claim- 
ing the  defense  against  even  an  innocent  purchaser. 

§  242.  Bills  of  lading-. — A  bill  of  lading  is  a  writ- 
ten instrument  acknowledging  receipt  of  goods  and 

agreeing  to   transport  them  to  a  specified   place  and 
10 


146  ELEMENTARY  LAW.  §242 

deliver  them  to  the  consignee  or  his  assigns.  It  is 
a  receipt  and  a  contract,  having  the  usual  attributes 
thereof.  It  is  at  the  same  time  the  representative  of 
the  goods,  and  as  such  has  certain  qualities  of  nego- 
tiability that  make  it  proper  to  consider  them  in 
connection  with  the  subject  of  bills  and  notes.  The 
holder  of  a  bill  of  lading  may  by  indorsing  and  de- 
livering the  instrument  to  another  pass  to  the  trans- 
feree the  title  to  the  goods  represented,  as  fully  as 
though  the  goods  themselves  were  delivered.  The 
transferee,  if  in  good  faith,  takes  the  title  free  from 
any  claims  against  the  indorser,  such  as  the  right  of 
stoppage  in  transitu  or  the  right  to  rescind  for  fraud. 
But  he  takes  only  such  title  as  the  indorser  actually 
had,  so  that  if  the  bill  of  lading  were  stolen,  or  if 
the  original  shipper  had  no  title  to  the  goods,  the  in- 
dorsee could  acquire  none. 


CHAPTER  XIX. 

CONTRACTS    OF    INSURANCE. 

§  243.  Definition. — Insurance  is  a  contract  where- 
by one  party  agrees  to  indemnify  another  in  case  he 
shall  suffer  loss  in  respect  of  a  specified  subject  by 
a  specified  peril.  The  party  who  insures  is  called 
the  underwriter;  the  party  indemnified  is  called  the 
insured.  When  the  contract  is  in  writing  it  is  called 
the  policy.  Unless  prohibited  by  a  law  a  verbal  con- 
tract of  insurance  is  valid.  And  so,  after  the  execu- 
tion and  delivery  of  the  policy  its  terms  may  be 
modified  by  verbal  agreement.  Insurance  contracts 
may  be  made  to  pay  a  certain  sum  in  case  of  death 
or  accidental  injury  of  some  person,  or  of  death  or 
accidental  injury  to  live  stock;  in  case  of  loss  of 
property  by  fire  or  tornado;  in  case  of  loss  of  ships 
or  their  cargoes  by  perils  of  the  sea;  in  case  of  failure 
of  title  to  property;  in  case  of  the  temporary  illness 
of  the  insured.  These  are  all  forms  of  indemnity 
contracts  which  may  be  properly  called  insurance 
contracts. 

§  244.  Contract,  how  made. — The  form  of  the  con- 
tract is  immaterial,  unless  there  is  something  in  the 
law  or  the  charter  of  the  company  making  it  which 
requires  it  to  be  in  a  specified  form.  When  the  pol- 
icy is  issued  by  the  company,  and  accepted  by  the 
insured,  the  rights  and  liabilities  of  the  parties  are 

(147) 


248  ELEMENTARY  LAW.  §  245 

fixed  by  its  terms.  If  all  the  terms  of  the  contract 
have  been  agreed  upon,  and  it  only  remains  for  the 
company  to  issue  the  policy,  the  failure  to  issue  it 
will  not  invalidate  the  contract.  When  the  contract 
takes  effect  is  a  question  which  is  to  be  determined 
by  reference  to  the  rules  already  stated,  under  the 
head  of  contracts  in  general.  Where  the  agent  of  the 
company  agrees  with  the  insured  upon  the  terms  of 
the  contract,  but  with  the  express  understanding  that 
it  is  not  to  take  effect  until  the  company  has  ap- 
proved it,  no  valid  contract  exists  until  such  ap- 
proval. 

§  245.    How  interpreted.— When  made  in  writing, 
the  interpretation  of   the  contract  is  for  the  court, 
the    object   being  always   to    arrive  at  the  real  in- 
tention of  the  parties.     It  can  not  be  denied,  how- 
ever, that  the  rules  of   interpretation  adopted  in  the 
courts  of  the  country  in  insurance  cases  tend  to  the 
conclusion  that  insurance  companies  are  not  favor- 
ites of  the  law.     Stipulations  in  a  policy  are   con- 
strued   liberally  towards    the  insured,   and    strictly 
against  the  insurer.     Even  where  a  stipulation  in  a 
policy  is  violated  by  the  insured,  it  will  not  prevent 
a  recovery  on  the  policy,  unless  it  is  expressly  pro- 
vided that  such  violations   shall  work  a  forfeiture. 
§  246.   Warranty  and  representation. — Questions 
arise  whether  certain  stipulations  in  the  policy  amount 
to  a  warranty  or  a  representation  merely.     A  war- 
ranty is  a  statement  or  stipulation    inserted   in  or 
referred  to  in  and  made  a  part  of  the  policy,  upon 
the   truth    or    performance    of    which    on    the    part 
of    the    insured    the    validity    of    the    contract    de- 
pends.    A  representation  is  an  incidental  statement 


§247  CONTRACTS  OF  INSURAE  149 

made  by  the  insured  with  regard  to  some  feature 
of  the  risk  upon  the  faitli  cf  which  the  contract 
is  entered  into.  It  is  said  to  be  no  part  of  the 
contract,  and  that  it  need  not  be  literally,  though  it 
must  be  substantially,  true.  So  it  is  evidently  a 
matter  of  difficulty  in  many  cases  to  distinguish  be- 
tween the  two.  Intentional  concealment  of  material 
facts  will  avoid  a  policy  unless  the  company  knew  of 
their  existence.  Material  facts  are  such  facts  only 
as  may  be  fairly  presumed  to  have  been  material  in 
the  belief  of  the  insured. 

§  247.  Payment  of  premiums. — The  premium  is 
the  consideration  for  the  insurance,  and  must  be  paid 
by  the  insured  or  by  some  one  for  him.  Where  the 
policy  provides  that  the  payment  of  the  first  premium 
must  be  made  when  the  policy  is  delivered,  it  does  not 
take  effect,  though  delivered,  until  payment  is  made. 
Where  a  note  is  given  and  accepted  for  the  premium, 
a  failure  to  pay  the  note  when  due  will  not  avoid  tin' 
policy  unless  it  is  expressly  stipulated  that  such  shall 
be  its  effect.  The  manner  of  payment  is  immaterial 
if  it  is  accepted  by  the  company  or  its  agent,  and  is 
in  accordance  with  the  usual  course  of  business  of 
the  agent,  known  to  the  company.  In  companies 
where  the  insured  is  entitled  to  have  his  dividends 
credited  as  part  payment  of  his  premiums,  it  is 
the  duty  of  the  company  to  give  him  timely  no- 
tice of  the  amount  in  cash  which  it  is  necessary 
for  him  to  pay,  the  reason  being  that  the  com- 
pany, having  exclusive  knowledge  of  the  facts,  is 
bound  to  make  them  known.  Premiums  falling  due 
on  Sunday  maybe  paid  on  the  following  Monday. 

§  248.   Waiver  of  payment.— An  agent  having  au- 
thority to  receive  the  premium  o.ay  agree  with  the 


150  ELEMENTARY  LAW.  §  240 

insured  to  waive  prompt  payment,  the  agent  becom- 
ing debtor  to  the  company  for  the  amount,  and  such 
waiver  will  bind  the  company.  And  even  where 
the  policy  makes  a  failure  to  make  prompt  payment 
a  cause  of  forfeiture,  if  the  company  has  been  in  the 
habit  of  granting  indulgence  to  the  insured  and 
accepting  payments  after  due,  it  can  not  insist  upon 
a  forfeiture  for  a  failure  to  make  prompt  payment. 

§  249.  Insurable  interest.— It  is  essential  to  a 
valid  policy  that  the  insured  should  have  an  insur- 
able interest  in  the  life,  or  the  thing  insured,  and 
generally  speaking,  whatever  has  an  appreciable  pe- 
cuniary value,  and  is  subject  to  loss  or  deterioration, 
or  of  which  one  may  be  deprived,  or  which  he  may 
fail  to  realize,  whereby  his  pecuniary  interest  is  or 
may  be  prejudiced,  may  properly  constitute  the  sub- 
ject-matter of  insurance,  the  object  of  insurance  be- 
ing to  protect  men  against  uncertain  events  which 
may  in  any  wise  be  of  disadvantage  to  them. 

§  250.  Increase  of  risk. — The  doing  of  anything 
by  the  insured,  or  with  his  assent,  which  increases 
the  risk  of  the  company,  will  avoid  the  policy,  as  the 
removal  of  one  whose  life  is  insured  to  a  place  pro- 
hibited by  the  policy,  or  the  change  of  a  business 
carried  on  upon  the  insured  property  to  another  busi- 
ness which  increases  the  danger  of  loss  by  fire.  It  is 
the  duty  of  the  insured  who  contemplates  a  change 
of  that  character  to  notify  the  company  and  procure 
its  assent  to  the  proposed  change.  In  making  an- 
swer to  questions  as  to  the  previous  serious  illness  of 
the  applicant  for  life  insurance,  if  the  applicant  in 
good  faith  believes  his  answer  to  be  true,  it  will  not 
avoid  the  policy,  though  his  answer  may  be  errone- 
ous. 


CHAPTER  XX. 

CONSIDERATION. 

§251.  Definition. — Consideration  is  something 
esteemed  in  law  to  be  of  value,  in  exchange  for 
which  the  promise  in  a  contract  is  made.  The  law 
estimates  values  in  money,  and  the  consideration 
must  be  something  to  which  a  jury  can  attach  a  pe- 
cuniary value.  Natural  love  and  affection  named  in 
a  deed  as  a  consideration  will  make  the  conveyance 
good,  but  a  promise  to  convey,  or  a  promise  to  pay 
money  in  consideration  of  natural  love  and  affection, 
is  not  binding.  As  between  the  original  parties  to  a 
negotiable  promissory  note,  or  bill  of  exchange,  a 
consideration  is  necessary,  but  if  the  note  or  bill  is 
purchased  in  good  faith,  before  it  is  due,  by  a  third 
person,  he  can  enforce  payment,  although  it  was 
originally  given  without  consideration. 

A  good  consideration  is  blood,  natural  affection 
and  the  like.  A  valuable  consideration  is  money,  or 
some  commodity,  or  marriage. 

One  who  takes  a  deed  based  upon  a  good  considera- 
tion only,  takes  the  property  subject  to  the  rights  of 
creditors  who  may  be  injured  thereby.  A  man  may 
give  away  his  property  if  he  retains  sufficient  to  pay 
his  existing  debts.  The  maxim  is  that  "a  man  must 
be  just  before  he  is  generous." 

A  mere  moral  obligation  imposed  by  a   sense  of 
(151) 


152  ELEMENTARY  LAW.  §  252 

duty  will  not  make  a  promise  binding.  A  promise 
to  pay  money  to  another,  prompted  by  motives  of 
gratitude  for  past  favors,  is  not  binding.  But  a 
moral  obligation,  supported  by  a  past  legal  obliga- 
tion, will  support  a  promise  and  make  it  binding.  If 
a  debt  is  barred  by  the  statute  of  limitations,  or  by  a 
discharge  in  bankruptcy,  and  the  debtor  makes  a 
new  promise  to  pay  it,  it  is  a  good  promise  for  the 
reason  that  though  there  is  no  present  legal  obliga- 
tion to  pay  there  is  a  moral  obligation,  and  when 
the  moral  obligation  rests  upon  what  was  a  previous 
legal  obligation,  it  is  a  valuable  consideration  and 
will  support  a  promise. 

§  252.  Adequacy  of  consideration. — The  adequacy 
of  consideration  is  something  that  courts  will  not  in- 
quire into  except  in  cases  of  imposition  or  fraud. 
Parties  capable  of  contracting  are  left  to  make  their 
own  bargains,  and  their  mistaken  estimates  of  values 
of  things  purchased  or  received  will  not  be  corrected. 
Where  the  inadequacy  is  so  gross  as  to  shock  the 
moral  sense  it  will  be  sufficient  proof  of  fraud. 

§  253.  Prior  obligation  as  consideration. — Where 
the  law  has  fixed  the  value  of  services  to  be  per- 
formed, as  by  naming  fees  for  official  services,  a 
promise  to  pay  more  is  not  binding.  So,  where  one 
is  already  bound  by  a  previous  agreement,  or  by  law  to 
do  a  particular  thing,  the  doing  of  the  act  is  no  con- 
sideration for  a  binding  promise.  If  one  owes  a  sum 
of  money  and  pays  part,  and  his  creditor  agrees  to 
release  him  from  the  payment  of  the  balance,  it  is  not 
binding.  But  if  a  debtor  gives  his  creditor  some 
article  not  money,  though  of  less  value  than  the 
whole  amount,  and  it  is  accepted  for  the  whole  debt, 


§254  CONSIDERATION.  153 

it  is  a  good  discharge;  and  so  if  a  debtor  procures  a 
friend  to  pa}r  his  creditor  a  sum  less  than  the  whole 
debt,  such  payment  is  a  good  consideration  to  sup- 
port a  promise  to  release  the  remainder.  And  a 
payment  of  a  sum  less  than  the  whole  debt  before  it 
is  due  is  a  good  consideration  to  support  a  release. 

§  254.  Promise  to  release  debtor. — Where  a  man 
is  embarrassed  and  his  creditors  mutually  agree  to 
take  a  portion  of  their  respective  debts  in  discharge 
of  all,  it  is  binding,  the  consideration  for  the  dis- 
charge being  the  mutual  promises  of  the  creditors 
and  not  the  amounts  of  money  they  receive. 

§  255.  Disputed  claims. — Where  there  is  a  dispute 
as  to  the  amount  due,  and  the  creditor  agrees  to  ac- 
cept less  than  what  may  really  be  due  in  discharge 
of  the  whole,  it  is  good.  Where  a  man  makes  a  claim 
against  another  in  good  faith  and  threatens  to  bring 
suit,  and  money  is  agreed  to  be  paid  if  he  will  not 
sue,  the  agreement  is  binding;  but  if  the  threat  is 
merely  to  extort  blackmail,  and  the  claimant  does  not 
in  good  faith  believe  he  has  a  just  claim,  such  agree- 
ment can  not  be  enforced.  The  consideration  prom- 
ised must  be  something  beneficial  to  the  promisee 
or  to  a  third  person,  or  a  detriment  to  the  promisor. 
A  simple  agreement  to  extend  the  time  of  payment  is 
not  binding,  unless  extra  interest  is  agreed  to  be  paid, 
or  interest  is  paid  in  advance  or  something  of  value 
given.  So,  if  one  agrees  to  carry  goods  for  nothing  it  is 
not  binding,  but  if  he  receives  the  goods  after  making 
such  a  promise,  he  must  carry  and  deliver  them 
safely.  Communicating  knowledge,  and  the  advice 
of  a  lawver  or  physician  arc  sufficient  considerations. 

§  25G.    Impossible  and  illegal  consideration.— An 


154  ELEMENTARY  LAW.  §257 

agreement  to  do  a  thing  absolutely  impossible  to  be 
done  is  no  consideration,  nor  will  an  agreement 
based  upon  an  illegal  or  immoral  consideration  be 
binding.  Where,  at  the  time  of  the  contract,  the 
thing  contracted  for  is  not  in  existence,  there  is  no 
consideration ,  as  when  two  in  good  faith  bargain  for 
the  purchase  and  sale  of  a  horse,  supposing  it  to 
be  alive,  when  in  fact  at  the  time  of  the  agreement 
it  is  dead. 

§  257.  Executed  and  executory  considerations. — 
The  consideration  is  executed  where  the  thing  agreed 
for  is  done  or  given,  and  it  is  executory  where, 
the  thing  promised  remains  to  be  given  or  done.  If 
one  is  employed  to  labor  for  a  sum  certain,  the  con- 
sideration is  executed  on  his  part  when  the  labor  is 
performed,  and  it  is  executory  on  the  part  of  his  em- 
ployer until  payment  is  made. 

§258.  Past  consideration. — The  consideration 
must  consist  of  a  present  or  future  act;  a  past  act 
can  not  serve  as  a  consideration  for  a  promise.  This 
rule  operates  very  harshly  in  some  cases,  as  where  a 
son  of  full  age  fell  sick  and  was  cared  for  by  stran- 
gers, who  paid  the  expenses  of  his  sickness,  it  was 
held  that  a  subsequent  promise  by  the  father  to  reim- 
burse them  could  not  be  enforced .  It  is  now  established 
law  that  the  past  performance  of  services  constitutes  no 
consideration  even  for  an  express  promise,  unless 
they  were  performed  under  the  express  or  implied 
request  of  the  defendant,  or  unless  they  were  done 
in  performance  of  some  duty  resting  on  him. 

§  259 .  Failure  and  want  of  consideration. — A  con- 
tract may  be  based  on  a  consideration  apparently  good , 
but  which  fails  altogether,  in  which  eventthe  contract 


§259  CONSIDERATIO  155 

will  not  be  enforced.  As  where  a  promissory  note  is 
given  for  a  horse  warranted  to  be  sound,  which  turns 
out  to  have  been  diseased  and  worthless  at  the  time, 
the  maker  of  the  note  is  absolved  from  his  lia- 
bility to  pay  it,  unless  it  is  a  negotiable  note  in  the 
hands  of  one  who  purchased  it  in  good  faith  before 
it  was  due.  Even  where  money  is  paid  on  a  contract 
supposed  to  be  valid,  if  the  consideration  fails  the 
money  may  be  recovered  back.  If  there  is  no  war- 
ranty of  the  thing  sold,  or  if  the  defects  complained 
of  were  apparent,  failure  of  consideration  can  not  be 
pleaded.  Ordinarily,  in  a  sale  of  personal  property 
the  seller  warrants  the  title,  but  if  at  the  sale  it  is 
clearly  stated  or  understood  that  the  seller  is  simply 
disposing  of  his  interest  in  the  thing  sold,  and  the 
title  fails,  it  is  no  failure  of  consideration,  for  the 
buyers  gets  all  he  bargained  for.  The  subsequent 
depreciation  in  value  of  the  thing  sold,  as  when  by 
new  inventions  a  patent  is  made  worthless,  is  not  in 
law  a  failure  of  consideration. 

If  a  contract  is  based  upon  a  consideration  in  part 
legal  and  in  part  illegal,  it  will  be  enforced  as 
to  the  legal  part  if  it  can  be  separated,  but  if  no  sep- 
aration can  be  made,  the  whole  contract  fails  for 
want  of  consideration. 

A  party  to  a  contract,  having  full  knowledge  of  the 
facts,  may  waive  his  right  to  plead  a  want  or  failure 
of  consideration,  as  he  may  waive  his  right  to  plead 
the  statute  of  limitations,  his  discharge  in  bank- 
ruptcy, his  infancy  or  the  like. 


CHAPTER  XXI. 

STATUTE  OF  FRAUDS. 

§  260.  History  of  the  statute. — To  prevent  frauds 
and  perjuries,  a  statute  was  enacted  in  the  reign  of 
Charles  II  in  England,  in  the  year  1677,  providing 
that  no  action  should  be  brought  to  enforce  certain 
agreements,  "unless  the  agreement  upon  which 
such  action  shall  be  brought,  or  some  note  or  mem- 
orandum thereof,  shall  be  in  writing  and  signed  by 
the  party  to  be  charged  therewith  or  some  other 
person  thereunto  by  him  lawfully  authorized."  It 
is  to  be  noticed  that  by  this  statute  parties  are  not 
prohibited  from  making  such  agreements  by  parol, 
but  the  performance  of  such  parol  agreements  is  purely 
voluntary.  It  is  simply  declared  that  the  courts  will 
not  aid  in  enforcing  them.  There  is  some  curious 
history  as  to  who  is  entitled  to  the  credit  of  suggest- 
ing or  formulating  this  law.  Some  give  it  to  Lord 
Hale,  but  the  better  opinion  is  that  Lord  Nottingham 
is  its  author.  That  it  is  regarded  as  a  good  law  in 
principle  is  shown  by  the  fact  that  its  most  impor- 
tant provisions  have  been  re-enacted  in  all  English- 
speaking  countries,  especially  the  fourth  and  seven- 
teenth sections  of  the  statute. 

§  261.  Provisions  of  the  statute. — The  fourth  sec- 
tion provides  that  no  action  shall  be  brought  whereby 
to  charge  : 

(156) 


§  202  STATUTE  OF  FRA  I '  DS.  ]  57 

(1)  Any  executor  or  administrator  upon  any  sp<  - 
cial  promise  to  answer  damages  out  of  his  own  es- 
tate. 

(2)  Or  to  charge  the  defendant  upon  any  specia. 
promise  to  answer  for  the  debt,  default  or  miscarriage 
of  another  person. 

(3)  Or  to  charge  any  person  upon  any  agreement 
made  upon  consideration  of  marriage. 

(4)  Or  upon  any  contract  or  sale  of  lands,  tene- 
ments, or  hereditaments,  or  any  interest  in  or  con- 
cerning them. 

(5)  Or  upon  any  agreement  that  is  not  to  be 
performed  within  the  space  of  one  year  from  the 
making  thereof. 

Unless  the  agreement  or  some  memorandum  thereof 
in  writing  should  be  signed  as  above  required. 

The  seventeenth  section  provides  that  no  contract 
for  the  sale  of  any  goods,  wares  and  merchandise 
for  the  price  of  ten  pounds  sterling  (fifty  dollars)  or 
upwards  shall  be  allowed  to  be  good,  except  the 
buyer  shall  accept  part  of  the  goods  so  sold  and  ac- 
tually receive  the  same,  or  give  something  in  earnest 
to  bind  the  bargain,  or  in  part  payment,  unless  some 
note  or  memorandum  of  the  bargain  in  writing  be 
made  and  signed,  as  required  in  the  fourth  section. 

Let  us  consider  the  contracts  affected  by  the  stat- 
ute, in  the  order  in  which  they  are  mentioned  in  the 
statute  itself. 

§  262.  Promises  of  executors  and  administrators. 
— An  executor  or  an  administrator  coming  into  pos- 
session of  the  estate  of  the  testator  or  decedent,  is 
only  liable  to  pay  the  debts  of  the  estate  in  the  order 
required  by  law  and  so  far  as  the  assets  of  the  estate 


158 


ELEMENTARY  LAW.  §  263 


properly  administered  will  enable  him  to  discharge 
such  debts.     This  legal  obligation  and  no  other  rests 
upon  him,  unless  he  sees   fit  to  assume  and  incur 
a  personal  liability  for  the  debts  of  the  estate.     If  he 
does  this  in  a  writing,  signed  by  him  or  his  agent, 
he  is  bound,  but  no  oral  agreement  on  his  part  can 
create  such  a  liability.     The  statute  applies  only  to 
debts  existing  against  the  estate.     If   the  executor 
agrees  with  an  heir  to  pay  a  sum  of  money  if  he  will 
abstain  from  bringing  suit  to  contest  the  will  or  the 
probate  of  it,  this  is  a  personal  undertaking  of  his 
own,  and  one  which  does  not  fall  within  the  statute. 
§  263.   Debt,  default  and  miscarriage.— What  is 
meant  by  the  terms  "debt,"  "default"  and  "mis- 
carriage"   of  another,  for   which    one  shall  not  be 
answerable  upon  his  oral  promise  ?     It  may  be  said, 
generally,  that  under  these  terms  are  included  every 
form  of  liability  or  obligation  which  rests  upon  one, 
whether  it  grows    out  of    tort  or  contract,  or  from 
whatever  cause.     There  are  three  persons  to  be  con- 
sidered :     ( 1 )  The  person  who  owes  the  debt  or  has 
incurred  the  liability.     (2)  The  person  to  whom  the 
debt  is  owing  or  who  is  entitled  to  enforce  the  exist- 
ing liability.     (3)  The  stranger  to  the  transaction, 
against  whom  no  liability  exists,   and   whom  it  is 
sought  to  charge  with  the  liability  of  the  debtor  or 
wrong-doer. 

§  264.  Original  or  collateral  obligation.— Whether 
an  oral  promise  is  enforceable  or  not  under  this 
clause  of  the  statute  depends  generally  upon  the 
question  whether  the  promise  is  an  original  obliga- 
tion or  is  collateral  to  some  other's  obligation.  If 
the  former,  it  would  be  valid  ;  if  the  latter,  it  would 
be  barred.     For  example  :   If  A  promises  to  pay  for 


§  265  STATUTE  OF  FB  H7DS.  159 

goods  furnished  to  B,  who  makes  no  promise,  it  is 
evident  thai  A's  promise  is  the  only  and  original  ob- 
ligation, and  that  it  is  not  within  the  statute  of 
frauds.  But  if  B  promises  to  pay  for  the  goods, 
and  A  promises  to  pay  in  case  B  fails  to  do  so,  A.'s 
promise  is  collateral,  and  an  action  on  it  is  barred  by 
the  statute. 

§  265.  Agreements  in  consideration  of  marriage. 
— It  is  hardly  necessary  to  say  that  this  clause  of  the 
statute  does  not  refer  to  the  mutual  promises  of 
marriage.  It  has  sole  reference  to  promises  collateral 
to  the  marriage  which  are  made  upon  condition  that 
the  marriage  shall  take  place,  as  where  a  man  agrees 
to  make  a  settlement  or  pay  a  sum  of  money  if  a 
marriage  is  consummated.  An  antenuptial  agree- 
ment by  which,  before  marriage,  a  woman  agrees  to 
relinquish  her  marital  rights  in  her  husband's  prop- 
erty, in  consideration  of  the  payment  to  her  of  a  sum 
certain,  is  within  the  statute  and  must  be  in  writing  to 
make  it  binding.  Nor  is  the  subsequent  marriage  of 
the  parties  such  a  part  performance  of  the  contract 
as  will  take  the  contract  out  of  the  statute. 

§  266.  Contracts  for  sale  of  lands.— The  word 
land  as  it  is  used  in  this  statute  has  been  held  to  in- 
clude not  only  the  land  itself,  but  every  claim  of  a 
permanent  right  to  hold  lands  of  another  for  a  par- 
ticular purpose,  and  to  enter  upon  them  at  all  times 
without  his  consent.  A  mere  verbal  license  to  enter 
upon  land  for  a  temporary  purpose  is  revocable.  Dif- 
ficulties arise  as  to  what  things  annexed  to  land  are 
covered  by  the  term  as  it  is  used  in  the  statute.  A 
ripened  crop  ready  to  be  gathered,  and  a  sale  of  any 
growing  produce,  raised  by  labor  and  expense,  in 
actual  existence  at  the  time  of  the  contract,  may  be 


160  ELEMENTARY  LAW.  §  267 

the  subject  of  a  binding  parol  contract.  And  it  has 
even  been  held  that  where  timber  or  other  produce  of 
land,  or  any  other  thing  annexed  to  the  land  is  spe- 
cifically sold,  whether  the  buyer  or  seller  is  to  sever 
it,  under  a  special  license  to  enter  for  that  purpose, 
it  is  a  sale  of  goods  and  not  a  sale  of  an  interest  in 
land.  By  statutes  of  some  of  the  states,  it  is  enacted 
that  leases  of  land  for  short  terms  are  valid,  though 
resting  in  parol. 

§  267.  Agreements  not  to  be  performed  within  a 
year. — The  agreement  must  be  impossible  of  per- 
formance within  the  year,  and  the  parties  to  it  must 
contemplate  that  it  shall  not  be  performed  within 
the  year.  The  mere  fact  that  it  may  not  be,  or  is 
not  in  fact  performed  within  the  year,  does  not  bring 
it  within  the  statute.  Illustrating  these  rules,  it  has 
been  held  that  an  agreement  to  do  something  upon 
the  happening  of  a  marriage,  or  upon  the  return  of  a 
ship,  or  to  pay  a  certain  sum  of  money  from  time  to 
time  during  the  life  of  another,  is  not  within  the  stat- 
ute. But  if  it  can  not  be  fully  performed  within  the 
year,  the  fact  that  it  may  be  terminated,  or  ihat  further 
performance  may  be  excused,  is  not  sufficient  to  take 
it  out  of  the  statute.  In  most  of  the  states  it  is  held 
that  the  statute  applies  only  to  contracts  which  are 
not  to  be  performed  on  either  side  within  a  year; 
and  that  if  the  parol  contract  is  to  be  fully  performed 
on  one  side  within  the  year,  it  will  be  good  under 
the  statute  of  frauds  even  though  the  other  side  can 
not  be  performed  within  the  year.  Other  states  hold 
the  contrary  doctrine. 

§  268.  The  note  or  memorandum. — The  statute 
requires  that  to  make  any  of  the  contracts  or  agree- 


§208  STATUTE  OF  FRAUDS.  161 

ments  just  enumerated  as  within  the  fourth  section 
of  the  statute  of  frauds  enforceable,  the  agreement,  or 
some  note  or  memorandum  thereof,  shall  be  in  writ- 
ing and  signed  by,  or  by  the  authority  of,  the  person 
sought  to  be  charged  thereby.  It  becomes  important 
to  know  what  sort  of  a  note  or  memorandum  is  lure 
meant.  The  statute  relates  to  a  parol  contract,  the 
evidence  of  which  must  be  supplied  by  a  written  note 
or  memorandum.  This  memorandum  may  be  gath- 
ered from  correspondence  or  embodied  in  a  single 
letter,  and  it  is  not  necessary  that  it  be  made  at  the 
time  of  the  agreement.  It  is  rather  the  acknowl- 
edgment of  the  fact  that  a  contract  has  been  made 
than  a  written  contract  itself,  which  is  an  instrument 
entered  into  and  signed  at  the  time  it  is  made. 
The  memorandum  may  be  made  by  a  broker  who  is 
the  agent  of  both  parties;  it  may  be  made  by  an 
auctioneer  who  is  agent  for  buyer  and  seller;  it  may 
be  made  by  one  of  the  parties  and  not  delivered  to 
the  other,  or  the  fact  that  it  has  been  made  may  be 
unknown  to  the  party  who  seeks  to  enforce  it  until 
long  after  it  has  been  made;  it  may  be  made  at  any 
time  before  the  action  is  commenced.  It  must  show 
agreement  on  the  part  of  the  party  sought  t<>  be 
charged;  it  must  show  clearly  the  subject-matter  and 
all  the  terms  of  the  agreement,  the  parties  to  it,  and 
some  courts  hold  that  it  must  show  what  the  consid- 
eration is.  Some  of  the  states  in  their  laws  adopting 
the  provisions  of  the  statute  expressly  state  either  that 
the  consideration  must  appear  in  the  memorandum 
or  that  it  is  unnecessary. 
11 


162  ELEMENTARY  LAW.  §  269 

§  269.  Signature  to  memorandum. — The  signing 
may  be  by  the  party  sought  to  be  charged,  or  by  his 
authorized  agent.  A  mark  of  an  illiterate  man  is  a 
sufficient  signing,  or  the  initials  of  a  name.  The  place 
of  the  signature  is  unimportant.  If  the  memoran- 
dum was  written  by  the  party  or  his  agent,  and  his 
name  appears  in  the  body  of  it,  it  is  sufficient. 

§  270.  Sale  of  goods,  wares  and  merchandise. — 
Oral  contracts  for  the  sale  of  goods  worth  fifty  dollars 
and  over  can  not  be  enforced,  unless,  (1)  the  buyer 
receives  part  of  the  goods,  (2)  the  buyer  gives  some- 
thing in  earnest  to  bind  the  bargain.  This  section 
does  not  apply  to  contracts  for  labor,  nor  where 
one  goes  to  a  mechanic  and  orders  the  manufacture 
of  an  article.  On  this  point  there  is  a  conflict  in 
the  decisions.  It  is  held  by  some  courts  that  if 
the  buyer  gives  an  order  for  the  manufacture 
of  an  article  which  is  usually  kept  in  stock  it 
is  within  the  statute,  but  that  if  he  orders  some- 
thing of  a  particular  pattern  to  be  made  to  suit  his 
own  fancy  the  statute  does  not  apply,  and  this  ap- 
pears to  be  the  weight  of  authority.  Sales  at  auction 
are  within  the  statute,  and  it  is  the  duty  of  the  auc- 
tioneer when  he  announces  a  sale  to  make  a  memo- 
randum of  it  or  to  deliver  the  goods.  In  order  to 
make  a  delivery  of  a  part  of  the  goods  effective,  the 
delivery  must  be  complete  and  be  accepted  by  the 
buyer;  so  where  it  is  desired  to  bind  the  bargain  by 
a  delivery  of  something  in  earnest,  the  payment 
must  be  made  if  in  money,  or  the  article  actually 
delivered  if  it  is  something  else  than  money,  and 
this  may  be  done  at  any  time  before  suit,  unless  the 


§  270  STATUTE  OF  FRAUDS.  1G3 

statute  requires  it  to  be  done  at  the  time  the  bargain 
is  made. 

As  to  the  form  of  the  memorandum  necessary  to 
bind  a  bargain  for  sale  of  goods,  what  has  already 
been  said  of  the  requisites  of  the  memorandum  to 
bind  agreements  for  the  sale  of  lands  will  apply. 


CHAPTER  XXII. 

CORPORATIONS. 

§  271.  Definition. — A  corporation  is  a  body  con- 
sisting of  one  or  more  persons,  established  by  or  un- 
der the  authority  of  the  law,  for  certain  specific  pur- 
poses, with  the  capacity  of  succession  (either  per- 
petual or  for  a  limited  period)  and  other  special 
privileges  not  possessed  by  individuals,  yet  acting  in 
many  respects  as  an  individual.  Corporations  are 
either  sole,  consisting  of  one  member  at  a  time,  or 
aggregate,  consisting  of  more  than  one  member.  A 
public  corporation  is  created  for  the  purpose  of  carry- 
ing on  some  public  business,  such  as  towns,  cities, 
counties.  A  private  corporation  is  formed  by  the 
voluntary  act  of  individuals  for  their  own  conven- 
ience or  profit,  such  as  banking  companies,  turn- 
pike and  railway  companies.  These  are  in  a  sense 
public,  for  they  render  service  to  the  public,  but 
they  are  distinguished  from  public  corporations 
by  the  fact  that  the  latter  are  founded  by  the 
government  for  public  purposes  alone.  There  is 
another  class  designated  as  quasi  corporations,  which 
have  some  of  the  attributes  of  ordinary  corporations, 
as  boards  of  school  commissioners,  boards  of  county 
commissioners,  boards  for  the  equalization  and  as- 
sessment of  taxes,  boards  of  supervision  of  poor- 
houses,  etc.     Joint  stock  companies,  formed  for  the 

(164) 


§272  CORPORATION.-.  165 

purpose  of  carrying  on  commercial  or  manufacturing 
enterprises,  which  have  all  the  features  of  a  partner- 
ship, except  that  there  is  a  substitution  of  a  stock- 
holder's liability  for  the  ordinary  liability  of  part- 
ners, are  quasi  corporations. 

§  272.  Powers  of  corporations. — The  powers  of  a 
corporation  are  restricted  to  the  limits  prescribed  by 
the  law  under  or  by  which  it  is  created.  (1)  A  cor- 
poration should  have  a  name  by  which  to  make  con- 
tracts, to  take,  hold  and  dispose  of  property,  and  by 
which  to  sue  and  be  sued.  (2)  It  should  have  a  cor- 
porate seal.  (3)  It  should  have  a  fixed  place  of  busi- 
ness for  the  general  management  of  its  affairs.  (4) 
It  may  make  its  own  by-laws,  and  appoint  and  re- 
move its  agents  and  officers. 

§  273.  Organization  of  corporations. — The  power 
to  create  corporations  is  vested  in  the  legislature  by 
the  constitution.  The  practice  and  power  of  creating 
corporations  by  special  legislative  enactments  has 
fallen  into  disuse,  or  been  abolished  in  most  of  the 
states.  General  laws  are  passed,  under  which  cor- 
porations are  organized  by  the  voluntary  agreement 
of  individuals.  The  manner  in  which  corporations 
are  organized  is  determined  by  the  statutes  of  each 
state.  Ordinarily  articles  of  incorporation  signed  and 
acknowledged  by  the  requisite  number  of  persons 
are  filed  in  some  public  office.  These  articles  give 
the  name  of  the  corporation,  state  the  object  of  its 
formation,  designate  the  place  where  it  proposes 
to  carry  on  its  business,  fix  the  amount  of  capital 
stock  and  the  denomination  of  the  shares  of  stock, 
the  names  and  residences  of  the  stockholders,  and 
the  names  of  the  directors  who  are  to  manage  the  af- 


166  ELEMENTARY  LAW.  §  274 

fairs  of  the  corporation  for  the  first  year.  When 
these  articles,  so  prepared,  signed  and  acknowledged, 
are  lodged  in  the  proper  office,  the  corporation  be- 
gins its  existence.  If  any  of  its  members  assume 
to  contract  or  act  as  a  corporation  before  these  requi- 
site formalities  have  been  complied  with,  such  acts 
are  not  corporate  acts,  though  they  may  bind  the  in- 
dividuals who  have  so  acted.  A  corporation  is  con- 
sidered to  be  a  citizen  of  the  state  under  whose  laws 
it  is  created,  and  if  it  wishes  to  exercise  corporate 
powers  in  another  state,  it  must  submit  to  and  obey 
such  laws  and  restrictions  as  may  be  imposed  by  the 
laws  of  the  state  in  which  it  does  business. 

§  274.  The  charter. — The  charter,  or  law  under 
which  a  corporation  is  organized,  is  the  measure  of 
its  powers.  In  construing  such  charters  and  laws 
the  courts  have  extended  the  powers  of  corporations 
to  all  such  matters  as  are  essential  to  preserve  their 
existence  and  to  accomplish  the  purposes  of  their 
creation.  The  enumeration  of  specific  powers  im- 
plies the  exclusion  of  others. 

§  275.  Vested  rights  of. — It  is  a  settled  rule  of 
law  that  when  a  private  corporation  is  once  formed 
according  to  law,  it  has  the  right  to  the  free  use  of 
all  the  franchises,  powers  and  privileges  conferred 
upon  it  by  the  laws  in  force  when  it  came  into  exist- 
ence, and  that  the  provisions  of  the  constitution 
of  the  United  States  prohibiting  all  legislation 
which  impairs  the  obligation  of  contracts  protects  it 
in  the  enjoyment  of  these  rights.  The  assertion  and 
enforcement  of  this  rule,  which  imposed  severe  re- 
strictions upon  the  legislative  power,  has  led  to  a 
radical  change  in  the  legislation  of  the  various  states, 


§  276  CORPORATIONS.  K37 

and  now  it  is  the  practice  to  insert  in  all  laws  author- 
izing the  formation  of  corporations  a  clause  reserving 
the  right  of  the  legislature  to  amend,  alter  or  repeal 
such  laws. 

§  27G.  Dissolution  of. — The  existence  of  a  corpo- 
ration maybe  determined:  (1)  By  the  expiration 
of  the  time  limited  for  its  duration.  (2)  By  valid 
laws  repealing  the  laws  under  which  it  was  organ- 
ized. (3)  By  voluntary  dissolution  or  the  abandon- 
ment of  the  purpose  for  which  it  was  organized. 
(4)  By  a  decree  of  forfeiture  at  the  suit  of  the  state 
for  misuser  or  non-user  of  its  powers  and  privileges. 


CHAPTER  XXIII. 

SECURITY    OF   THE    PERSON. 

§  277.  The  right  to  life. — Every  one  has  a  natural 
right  to  the  security  of  his  person  and,  stated  gener- 
ally, may  treat  any  interference  with  his  person  as 
a  wrong.  The  right  to  life  is  the  first  and  greatest 
of  all  rights.  It  exists  without  law  and  is  an  in- 
alienable right.  No  one  can  lawfully  consent  to  the 
taking  of  his  life  by  another,  and  no  one  can  lawfully 
destroy  his  own  life.  It  seems  superfluous  to  say 
that  whoever  takes  the  life  of  another  person  is 
guilty  of  a  legal  wrong.  But  it  is  stated,  for  the 
purpose  of  indicating  certain  exceptions,  the  reasons 
for  which  are  clear  and  well  settled. 

§  278.  When  life  may  be  lawfully  taken.— The 
sovereign  power  may  lawfully  take  the  life  of  a  per- 
son, by  due  process  of  law,  as  a  punishment  for 
crime. 

In  time  of  war  or  under  martial  law,  it  is  justifi- 
able or  excusable  to  take  the  life:  (1)  Of  enemies 
underarms.  (2)  Of  non-combatants,  who  by  their 
fault,  expose  themselves  to  the  dangers  of  the  con- 
flict. (3)  Of.  any  persons  who  are  guilty  of  grave 
offenses  against  the  rules  of  war,  such  as  spies, 
sleeping  sentinels,  deserters. 

Where  an  alternative  exists,  as  between  two  lives 
having  equal  rights,  it  being  impossible  that  both 

(168) 


§279  SECURITY  OF  THE  PERSON.  ]•'.• 

should  live  and  it  being  necessary  to  make  a  choice 
in  order  to  save  either,  it  will  be  excusable  to  take 
one  or  the  other  life. 

Where  for  self-protection  or  for  the  due  enforce- 
ment of  law  it  becomes  necessary  to  take  life,  such 
taking  is  justifiable. 

The  unintentional  taking  of  life  will  be  deemed  an 
inevitable  accident  and  not  a  legal  wrong,  unless 
the  act  which  results  in  such  loss  of  life  be  for  some 
other  reason  an  unlawful  act. 

§  279.  Remedies. — It  is  obvious,  from  the  nature 
of  the  case,  that  for  an  unlawful  taking  of  life  there 
can  be  no  redress  in  favor  of  the  person  whose  life  is 
taken.  And  no  preventive  remedy  is  given  that  is 
effective.  It  is  true,  there  is  punishment  by  crimi- 
nal prosecution,  but  that  is  deterrent  only.  There  is 
also  the  proceeding  by  surety  of  the  peace,  but  one 
who  is  not  deterred  by  fear  of  indictment  will  have 
little  restraint  through  a  bond.  The  law  does,  how- 
ever, give  civil  redress  for  the  taking  of  life,  in  favor 
of  persons  standing  in  certain  relations  toward  the  de- 
ceased. 

§  280.  Recovery  for  injuries  causing  death. — At 
common  law  there  was  no  right  of  action  in  any  one 
for  the  death  of  a  human  being.  It  was  deemed  re- 
pugnant to  the  law  to  attempt  any  estimate  in  a  pe- 
cuniary way  of  the  value  of  human  life.  For  loss 
suffered  between  the  date  of. an  injury  and  the  death, 
the  person  injured  had  a  right  of  action,  and  any  one 
entitled  to  his  services  might  sue.  But  for  the  loss 
by  the  death  there  was  no  remedy.  To  supply 
this  defeel  in  the  law,  statutes  have  been  passed. 
In  this  country  they  are  substantially  the  same  as 


170  ELEMENTARY  LAW.  §280 

the  English  statute  known  as  Lord  Campbell's  act. 
It  is  provided  that  whenever  the  death  of  a  human 
being  is  caused  by  the  wrongful  act  or  default  of  an- 
other, the  personal  representative  may  maintain  an 
action  against  the  wrong-doer,  and  the  damages  re- 
covered shall  inure  to  certain  persons  having  an  in- 
terest in  the  life.  While  the  various  statutes  do  not 
entirely  agree  as  to  who  shall  be  the  beneficiaries,  it 
is  uniformly  the  law  that  unless  some  one  or  more 
persons  of  the  classes  named  survive  the  deceased, 
nothing  can  be  recovered.  And  the  beneficiary 
must  have  some  pecuniary  interest  in  the  life  of 
the  deceased,  or  reasonable  expectation  of  benefit, 
and  the  damages  recovered  can  not  exceed  such  in- 
terest or  benefit.  The  statutes  limit  the  amount  re- 
coverable, in  some  states  to  $5,000,  in  others  to 
$10,000.  In  some  of  the  states  the  action  must  be 
brought  in  the  name  of  the  guardian  or  father,  if  the 
deceased  was  a  child. 


CHAPTER  XXIV. 

ASSAULT  AND  BATTERY. 

For  corporeal  injuries  less  than  the  taking  of 
human  life,  the  law  gives  redress  to  the  person  in- 
jured. When  the  injury  is  direct  and  intentional,  it 
is  called  an  assault  and  battery.  It  is  not  essential, 
in  order  to  constitute  a  wrong,  that  the  wrong-doer 
shall  have  fully  carried  out  his  intention,  nor  that 
any  actual  damage  shall  result.  An  attempted  in- 
jury may  be  an  assault,  and,  though  there  be  no 
damage  actually  suffered,  the  law  presumes  that 
there  was  some  damage. 

§  281.  Assault  defined. — An  assault  is  an  attempt 
with  unlawful  force  to  inflict  bodily  injury  upon 
another,  accompanied  with  real  or  apparent  ability 
to  give  effect  to  the  attempt,  if  not  prevented. 

§  282.  The  ability  and  intent  to  injure.— In  a 
civil  suit  for  assault,  if  the  defendant  had  actual 
present  ability  and  intent  to  injure,  he  is  liable,  re- 
gardless of  whether  the  plaintiff  believed  there 
was  such  ability  and  intent.  And  even  though  the 
defendant  did  not  have  actual  present  ability,  or  did 
not  have  an  intent  to  injure,  he  is  nevertheless  liable, 
if  his  conduct  was  such  as  reasonably  created  in 
plaintiff  the  belief  that  such  ability  and  intent  ex- 
isted. However  threatening  an  act  would  otherwise 
appear  to  be,  it  is  not  an  assault,  if  from  the  words 

(171) 


172  ELEMENTARY  LAW.  §283 

or  conduct  accompanying  the  act  it  is  apparent  that 
no  injury  will  be  done.  And  mere  words  or  threats 
do  not  of  themselves  constitute  an  assault. 

§  283.  Battery  defined. — Battery  is  any  touching 
of  another  person  with  intent  to  injure  or  in  an 
angry,  revengeful,  rude,  insolent  or  hostile  manner, 
and  without  his  lawful  consent. 

§  284.  The  intent  of  the  wrong-doer. — For  civil 
liability,  it  is  not  essential  that  there  shall  have  been 
an  actual  intent  to  injure  the  plaintiff.  It  is  suffi- 
cient if  the  act  itself  was  unlawful  or  if  it  was  in- 
tended to  injure  some  person  and  unintentionally 
injured  the  plaintiff.  The  essence  of  the  offense  is 
that  the  defendant  shall  have  been  intentionally 
guilty  of  a  wrong,  and  that  plaintiff's  person  shall 
have  been  injured  thereby. 

§  285.  Consent  of  the  one  injured. — If  the  plaint- 
iff consented  to  the  defendant's  act,  the  defendant  is 
not  liable  for  assault  and  battery,  unless: 

(1)  The  act  be  a  breach  of  the  peace. 

(2)  The  plaintiff  be  legally  incapable  of  giving 
consent. 

(3)  The  consent  be  obtained  by  fraud. 

(4)  Force  be  used  in  excess  of  the  consent. 

§  286.  Justification  for  battery. — In  time  of  war, 
or  under  martial  law,  acts  that  would  be  justifiable 
though  they  result  in  taking  life,  will  of  course  be 
justifiable  if  they  result  in  any  less  degree  of  injury. 

Upon  motives  of  public  policy,  wherever  the  law 
can  not  be  otherwise  adequately  enforced,  it  is  justi- 
fiable to  use  so  much  force  as  is  necessary.  An 
officer  with  authority  to  arrest  may  therefore  use 
reasonable  force  to  effect  the  arrest.     For  a  like  reason 


§287  ASSAULT  AND  BATTERY.  173 

any  one,  officer  or  private  individual,  may  use  rea- 
sonable force  to  prevent  a  breach  of  the  peace,  or, 
after  a  felony  has  been  committed,  to  apprehend  the 
felon. 

For  purposes  of  correction  and  punishment  a  rea- 
sonable degree  of  chastisement  is  justifiable  by  a 
parent  upon  hischild,  by  a  teacher  upon  the  pupil, by 
a  jailer  upon  his  prisoner,  and  by  a  shipmaster  upon 
his  crew,  and  under  some  circumstances  upon  his 
passenger.  An  act  that  would  otherwise  be  assault 
and  battery  may  be  justifiable  where  it  is  necessarily 
done  for  the  purpose  of  saving  the  life,  either  of  the 
person  injured  or  of  another. 

Whenever  the  force  used  upon  a  justifiable  occa- 
sion is  of  a  degree  that  is  unreasonable  or  excessive 
it  becomes  itself  a  wrong,  and  the  person  so  using 
excessive  force  becomes  liable  for  the  excess,  and  in 
some  states  also  loses  the  right  to  complain  of  the 
violence  against  him. 

§  287.  Self-defense. — Any  one  may  lawfully  use 
force  to  protect  himself  against  the  unlawful  force  of 
others.  But  only  so  much  force  is  justifiable  as  is 
reasonably  necessary  for  protection.  The  degree  of 
force  that  may  be  lawfully  used  by  way  of  self-de- 
fense varies  with  the  nature  of  the  attack.  If  the 
person  attacked  has  the  belief  upon  reasonable 
grounds  that  his  life  is  in  danger,  or  that  he  will  re- 
ceive great  bodily  harm,  he  will  be  excused,  though 
he  kill  his  adversary.  But  out  of  regard  for  human 
life,  the  law  does  not  permit  one  to  kill  his  assailant 
unless  there  be  such  belief  upon  reasonable  grounds. 
One  is  bound  to  retreat,  if  possible,  and  to  confine 
his  defense  within  reasonable  limits.     So,  one   at- 


174  ELEMENTARY  LAW.  §288 

tacked  by  another  with  his  fists,  can  not  ordinarily 
justify  the  killing  his  assailant  at  once  with  a  knife 
or  other  deadly  weapon.  The  law  does  not,  how- 
ever, require  one  to  retreat  when  in  his  own  house. 
His  house  is  said  to  be  his  castle,  and  he  may 
stand,  repelling  any  force  with  force,  even  though  it 
become  necessary  to  take  the  life  of  the  assailant  to 
repel  the  assault.  Provocation  by  mere  words  is 
never  an  assault,  and  therefore  will  never  excuse  the 
use  of  force  in  retaliation. 

The  right  of  self-defense  includes  the  right  of  one 
to  protect  persons  standing  in  the  following  relations, 
husband  and  wife,  parent  or  person  in  loco  parentis 
and  child,  members  of  the  same  family  and  master 
and  servant.  The  right  of  self-defense  also  exists  in 
favor  of  one  for  the  protection  of  his  possessions  and 
the  possessions  of  those  holding  the  above  relations 
toward  him.  In  order  that  a  person  may  avail  him- 
self of  the  plea  of  self-defense,  it  is  generally  neces- 
sary that  he  shall  have  been  free  from  fault  in  pro- 
voking the  attack,  for  the  law  will  not  permit  the 
right  of  self-defense  to  be  used  as  a  cloak  for  wrong- 
doing. 

§  288.  The  remedies. — The  civil  remedy  for  as- 
sault, or  for  assault  and  battery,  is  an  action  for  dam- 
ages. The  injured  person  is  entitled  to  recover  dam- 
ages for  all  the  natural  results  of  the  injury  that 
have  been  or  probably  will  be  suffered.  Both  mental 
and  physical  suffering,  or  impairment  of  faculties, 
the  sense  of  shame  and  humiliation,  the  loss  of  so- 
cial respect,  actual  and  direct  pecuniary  loss,  are  ele- 
ments to  be  considered  in  assessing  the  damages. 


§28S  ASSAULT  AND  BATTERY.  17,5 

Where  the  offense  is  done  with  malice,  or  with  de- 
liberate intent  to  injure,  exemplary  or  punitive 
damages  may  be  recovered,  unless  the  act  is  also 
punishable  criminally,  in  which  case  such  damages 
can  not  be  recovered  in  a  civil  action. 


CHAPTER  XXV. 

FALSE    IMPRISONMENT. 

§  289.  Definition. — It  is  every  one's  right  to  enjoy 
the  freedom  of  his  person,  to  go  and  come  when- 
ever and  wherever  he  may  lawfully  do  so.  Any 
interference  with  this  freedom  may  be  a  legal  wrong. 
To  forcibly  compel  one  to  go  from  a  place  or  to 
forcibly  prevent  him  from  coming  to  a  place  will  gen- 
erally amount  to  and  be  actionable  as  an  assault, 
battery,  nuisance  or  trespass.  Such  an  act  will  not, 
however,  constitute  an  imprisonment. 

False  imprisonment  is  imposing  by  force  or  threats 
an  unlawful  restraint  upon  one's  freedom  of  locomo- 
tion, or  detaining  one  without  legal  authority. 

§  290.  The  detention  or  restraint. — There  need 
not  be  an  actual  touching  of  the  person.  If  the  per- 
son submits  upon  command  or  threats,  and  believes 
he  is  under  restraint,  it  is  a  sufficient  imprisonment. 
The  restraint  must,  however,  be  complete.  If  one  is 
prevented  from  moving  in  one  direction  only  it  is 
not  imprisonment,  nor  is  it  if  he  is  prevented  from 
moving  in  every  direction  except  one.  So  long  as 
there  is  any  reasonable  path  known  to  be  left  open 
and  free  to  him,  a  person  can  not  be  said  to  be  im- 
prisoned. But  it  is  immaterial  whether  the  bounda- 
ries of  the  imprisonment  be  large  or  small. 

§  291.  The  unlawfulness  of  the  restraint. — To 
(176) 


§292  FALSE  IMPRISONMENT.  177 

constitute  a  legal  wrong  it  is  necessary  that  the  im- 
prisonment be  unlawful.  For  determining  what 
restraints  are  unlawful,  the  shorter  inquiry  is,  what 
restraints  does  the  law  allow  ?  All  others  will  be 
legal  wrongs. 

Lawful  restraint  may  be,  1st,  without  legal  pro- 
cess;  2d,  with  legal  process. 

§  292.  Lawful  restraint  without  legal  process. — 
In  some  cases  the  law  deems  it  less  productive  of 
mischief  to  allow  a  person  by  his  own  act  to  restrain 
another  than  to  require  him  to  resort  to  legal  pro- 
ceedings. The  reason  lies  in  the  ineffectiveness  of 
legal  proceedings  under  the  circumstances,  and  in 
the  necessity  for  prompt  action.  Order  and  peace 
are  better  subserved  by  the  individual  act  than  by  the 
tardy  redress  of  legal  proceedings. 

A  parent  may  impose  restraint  upon  his  child. 

A  teacher  acting  in  loco  parentis  may  restrain  a 
pupil,  subject,  however,  to  the  control  of  the  parent. 

A  guardian  of  the  person  of  a  ward  may  exercise 
restraint. 

A  shipmaster  may  restrain  members  of  his  crew 
or  passengers  to  preserve  discipline  and  order. 

Military  officers,  in  time  of  war,  may  of  course  re- 
strain the  captured  enemy,  spies  and  any  persons  in- 
fringing the  rules  of  war,  or  suspected  of  doing  so. 
In  time  of  peace  they  may  impose  restraint  upon 
those  who  are  under  military  control,  for  military  of- 
fenses, but  they  may  not  restrain  others. 

One  who  is  bail  for  another  may  generally,  by  fol- 
lowing the  procedure  of  the  statute,  himself  arrest 
and  restrain  his  principal. 
12 


178  ELEMENTARY  LAW.  §292 

Any  person  may  restrain  another  who  is  danger- 
ous from  insanity  or  intoxication,  but  is  bound  with- 
out delay  to  surrender  the  dangerous  person  to  the 
officers  of  the  law. 

A  peace  officer  may  without  a  warrant  arrest  and 
restrain  a  person  : 

(1)  To  prevent  breach  of  the  peace  in  his  view. 

(2)  For  a  felony  or  misdemeanor  if  committed  in 
his  view,  but  not  for  a  mere  misdemeanor  committed 
out  of  his  view. 

(3)  For  a  past  felony,  provided  he  has  reasonable 
grounds  for  believing  the  arrested  person  committed 
a  felony.  And  he  is  justifiable,  even  though  in  fact 
the  arrested  person  is  innocent,  or  even  though  in 
fact  no  felony  had  been  committed. 

A  private  person  may  without  legal  proceedings 
arrest  and  restrain  another : 

(1)  To  prevent  breach  of  the  peace  in  his  view. 

(2)  For  a  felony,  whether  past  or  in  his  view, 
provided  a  felony  has  been  actually  committed,  and 
he  has  reasonable  grounds  for  believing  the  person 
arrested  to  be  guilty.  He  makes  the  arrest  at  his 
peril,  however,  and  if  no  felony  has  been  committed, 
he  will  be  held  liable. 

Where  the  arrest  and  restraint  is  for  a  felony  or 
misdemeanor,  the  person  arrested  must  be  taken  be- 
fore a  magistrate  within  a  reasonable  time,  or  the 
imprisonment  can  not  be  justified.  In  all  cases,  the 
restraint  exercised  must  be  reasonable,  and  if  it  be- 
comes excessive,  the  person  restraining  is  guilty  of  a 
legal  wrong.  It  is,  however,  doubted  whether  a 
parent  can  ever  be  civilly  liable  for  damages  to  his 


§293  ;false  imprisonment.  179 

child,  on  account  of  an  excessive  restraint,  although 
he  may  be  criminally  liable  therefor. 

§  293.  Lawful  restraint  under  legal  process. — 
After  judgment  of  insanity,  a  warrant  in  proper 
form  is  a  justification  for  the  restraint  of  the  insane 
person,  even  after  the  person  be  in  fact  restored  to 
sanity.  Judges  within  the  limits  of  their  jurisdiction 
are  never  civilly  liable  for  causing  the  restraint  of  a 
person,  even  where  they  are  guilty  of  error,  or  abuse 
of  their  power.  This  rule  rests  upon  public  policy,  it 
being  deemed  safer  that  judges  shall  be  free  from 
any  fear  of  private  suit,  and  that  redress  be  left 
wholly  to  the  state.  But  where  judges  act  wholly 
without  jurisdiction,  they  are  civilly  liable  to  the 
person  restrained,  if  they  have  acted  knowingly  and 
maliciously.  Courts  of  limited  jurisdiction  are  held 
to  stricter  accountability,  and  are  bound  to  know  and 
not  to  exceed  the  limits  of  their  jurisdiction.  So 
that  while  judges  of  general  jurisdiction,  acting  with- 
out or  beyond  jurisdiction,  are  not  liable  so  long  as 
they  act  in  good  faith,  judges  of  limited  and  in- 
ferior jurisdiction  are  liable  for  acts  in  excess  of 
jurisdiction,  whether  in  good  faith  or  not. 

§  294.  Officers. — Officers  who  make  arrests  upon 
legal  process  must,  in  order  to  justify  such  arrests, 
be  able  to  show  : 

(1)  That  the  process  was  issued  by  a  court  having 
jurisdiction  of  such  cases. 

(2)  That  there  is  nothing  on  the  face  of  the  pro- 
cess, apprising  the  officer  that  no  authority  existed 
in  the  particular  case. 

(3)  That  he  acted  reasonably,  promptly  and  mod- 
erately, in  the  execution  of  the  process. 


ISO  ELEMENTARY  LAW.  §  295 

All  persons,  whether  parties  or  attorneys,  who 
procure  the  issuance  of  illegal  process,  under  which 
arrest  is  made,  are  liable  to  the  person  arrested.  But 
the  liability  will  not  be  on  the  ground  of  false  im- 
prisonment, except  where  the  process  procured  is 
extra-judicial,  or  in  other  words  is  not  valid  process. 
If  the  process  is  valid,  there  is  no  liability  for  false 
imprisonment,  even  though  the  process  be  procured 
by  a  malicious  and  false  statement  of  the  facts.  The 
remedy  in  the  latter  case  is  by  an  action  for  malicious 
prosecution,  which  will  be  considered  hereafter. 

§  295.  Remedy. — The  person  arrested  may  main- 
tain an  action  for  damages  against  the  wrong-doer, 
and  is  entitled  to  recover  all  proximate  damages. 
He  may  recover  compensatory  damages,  and  as  ele- 
ments of  such  damages  the  jury  may  consider  all 
expenses  reasonably  incurred  to  procure  discharge, 
including  reasonable  attorney's  fees  in  the  former 
proceeding,  loss  of  time  and  employment,  loss  by 
interruption  of  business,  bodily  and  mental  suffer- 
ing, the  sense  of  shame  and  humiliation,  the  loss  of 
or  injury  to  honor,  reputation  and  social  position. 

In  addition  to  compensatory  damages,  the  person 
illegally  restrained  may  recover  exemplary  or  puni- 
tive damages  when  the  act  was  done  maliciously  or 
with  undue  violence.  But  exemplary  damages  can 
not  be  recovered  when  the  act  complained  of  is  pun-; 
ishable  criminally. 

§  296.  Privilege  from  arrest. — Upon  grounds  of 
public  policy  the  law  declares  persons  under  certain 
circumstances  to  be  free  from  arrest. 

Ambassadors  and  representatives  of  foreign  pow- 
ers are  exempt   from  local  jurisdiction,  not  only  in 


§  297  FALSE  IMPRISONMENT.  1S1 

civil  but  criminal  cases,  the  fiction  being  that  they 
carry  with  them  the  territory  and  jurisdiction  of 
their  own  countries.  The  exemption  extends  to  the 
family,  secretaries  and  servants  of  the  foreign  rep- 
resentative. But  the  privilege  may  be  waived  and 
local  jurisdiction  may  be  submitted  to. 

By  the  constitution  of  the  United  States  and  of 
the  states  members  of  the  legislature  are  exempt 
from  arrest,  except  for  treason,  felony  or  breach  of 
the  peace,  while  attending  the  sessions  of  the  legis- 
lature, and  for  a  reasonable  time  before  and  after, 
while  going  to  or  from  the  same. 

Parties  litigant,  witnesses,  attorneys,  judges,  jurors 
and  other  officers  of  court  are  exempt  from  arrest  on 
civil  process  while  attending  in  court,  and  while  go- 
ing to  and  from  the  same.  In  most  states  voters, 
while  going  to  and  from  the  polls,  are  privileged 
from  civil  arrest.  In  some  states  women  are  privi- 
leged from  civil  arrest. 

§  297.  Remedy  for  arrest  of  privileged  persons. 
— The  privilege  from  arrest  may  always  be  waived 
by  the  privileged  person.  It  follows,  that  the  arrest 
is  not  wrongful  until  the  person  claims  his  privilege 
and  applies  for  his  discharge.  This  he  may  procure 
by  application  to  the  court  issuing  the  process  or  by 
writ  of  habeas  corpus.  In  some  cases  where  the 
privilege  is  for  the  benefit  of  other  persons,  as  in 
case  of  witnesses,  any  one  interested  may  secure  the 
discharge,  or  the  court  may  act  on  its  own  motion. 


CHAPTER  XXVI. 

MALICIOUS     PROSECUTION. 

§  298.  Elements  of  the  wrong. — It  is  every  man's 
legal  right  to  be  free  from  any  unjust  legal  proceed- 
ings, and,  strictly  speaking,  every  suit  or  legal  pro- 
ceeding that  fails  is  an  infringement  of  that  right. 
But  it  is  not  every  unsuccessful  suit  that  will  give 
the  person  sued  a  right  to  recover  damages  therefor. 
The  due  enforcement  of  the  law  requires  that  honest 
litigants  shall  not  be  deterred  by  the  fear  of  liability 
for  malicious  prosecution  from  asserting  their  claims 
civilly,  nor  from  the  praiseworthy  work  of  bringing 
offenders  to  justice.  Therefore  the  wrong  from  un- 
founded legal  proceedings  is  through  motives  of 
public  policy  limited  to  such  proceedings  as  are  in- 
stituted maliciously  and  without  probable  cause 
therefor.  Furthermore,  the  law  does  not  favor  the 
maintenance  of  a  second  action  during  the  pendency 
of  another  in  which  precisely  the  same  questions  are 
involved.  The  proceeding  complained  of  as  a  mali- 
cious prosecution  may  always  result  in  a  judgment 
against  the  party  charged,  and  when  such  result 
follows,  the  judgment  is  generally  a  conclusive  ad- 
judication that  there  was  sufficient  cause  for  the 
proceeding.  The  law  does  not,  therefore,  permit  an 
action  for  malicious  prosecution  until  after  the  ter- 
mination of  the  proceeding  complained  of,  and  this 

(182) 


§299  MALICIOUS  PROSECUTION.  183 

termination  must  be  other  than  by  a  valid  judgment 
against  the  party  charged,  otherwise  it  might  happen 
that  a  prosecuting  witness  would  be  held  liable  in 
damages  for  instituting  a  proceeding  without  prob- 
able cause,  and  afterward  in  the  proceeding  com- 
plained of  the  criminal  might  be  convicted  upon 
evidence  beyond  a  reasonable  doubt.  Therefore,  in 
order  that  a  plaintiff  may  maintain  an  action  for 
malicious  prosecution,  he  must  establish  the  con- 
currence of  three  things,  1st,  the  malicious  motive; 
2d,  the  absence  of  probable  cause;  3d,  the  proceed- 
ing must  have  terminated.  If  he  fails  to  establish 
any  one  of  these  three  elements  his  action  can  not 
prevail. 

§  299.  The  malicious  motive. — This  does  not  nec- 
essarily mean  hatred,  ill-will  or  revenge.  By  mal- 
ice here  is  meant  any  direct  or  indirect  motive 
of  wrong.  It  may  be  any  motive  other  than  that 
of  simply  bringing  the  supposed  offender  to  jus- 
tice. So,  if  the  object  of  instituting  criminal  pro- 
ceedings be  shown  to  be  to  compel  a  person  to  pay  a 
debt  or  to  surrender  property,  there  is  malice  in  the 
legal  sense.  Malice  may  be  inferred  from  the  reckless- 
ness or  gross  negligence  of  failing  to  make  proper  in  ves- 
tigation  before  beginning  the  proceeding.  And  it  may 
be  inferred  from  the  entire  absence  of  probable  cause. 
without  other  evidence  ;  for  it  is  inconceivable  that 
one  can  act  with  good  faith  in  such  a  case,  unless  he 
has  some  probable  cause.  The  question  of  the  ex- 
istence or  non-existence  of  malice  is  one  of  tact  for 
the  jury,  although  it  is  the  province  of  the  court  to 
decide  whether  there  is  any  or  sufficient  evidence  of 
malice. 


184  ELEMENTARY  LAW.  §  300 

§  300.    Want  of  probable  cause.— Probable  cause 
is  the  apparent  existence  of  such  facts   and   circum- 
stances as  would  excite  the  belief    in  a  reasonable 
mind  that  the  person  charged  is  guilty.     It  is  essen- 
tial that    the  prosecutor  shall  have  entertained    an 
honest  belief  in  the  guilt.     Although  there  might 
otherwise  be  probable  cause  from  suspicious  circum- 
stances, yet    if   the  prosecutor  knew  or  believed  the 
accused  to  be  innocent  he  would  not  have  probable 
cause  for  making  the  charge.     It  matters   not  that 
facts  actually  existed  which  would. amount  to  proba- 
ble cause,  such  facts  must  be  known  to  the  prosecu- 
tor at  the  time  of  the  prosecution  in  order  to  avail 
him.     The  mental  attitude  of   the  prosecutor  is  in 
such  case  one   of  the  facts  and  circumstances  to  be 
considered,  in  determining  whether  he  had  probable 
cause.     It  is  not  enough,  however,  that  the  prose- 
cutor entertained  an  honest  belief  in  the  guilt  of  the 
accused.     Such  belief  must  have  been  upon  reason- 
able grounds,  and  mere  floating  rumors  are  not  gen- 
erally considered  a  sufficient  foundation.     It  makes 
no  difference  that  the  accused  was  in  fact  innocent; 
the   question  is   not  as  to  the  innocence  of  the  ac- 
cused, but  whether  there  was  probable  cause  for  be- 
lieving him  to  be  guilty.     Absence  of  probable  cause 
can  not  generally  be  inferred  from  the  mere  fact  that 
the  proceeding  was  actuated  by  ill-will.     There  must 
be    other    evidence.       For,  a   belief    upon   probable 
grounds,    that   the    accused    was    guilty  of    offense, 
would  almost   inevitably    excite  an    ill-will  toward 
him,  and  hence  the  existence  of  ill-will  is  equally 
consistent  with  the  presence  as, with   the  absence  of 
probable  cause.   But  where  the  malice  consists  in  the 


§301  MALICIOUS  PROSECUTION.  185 

wrongful  use  of  the  legal  proceedings  for  a  collateral 
improper  purpose,  it  is  competent  evidence  of  the  ab- 
sence of  probable  cause  ;  for  such  evidence  would  go 
to  the  question  whether  the  prosecutor  honestly  be- 
lieved the  accused  guilty.  The  fact  that  the  prose- 
cutor laid  the  facts  and  circumstances  before  counsel 
learned  in  the  law,  and  acted  upon  the  opinion  given, 
is  competent  evidence,  both  of  the  absence  of  malice 
and  the  existence  of  probable  cause,  but  is  not  con- 
clusive. In  order  to  afford  protection,  there  must 
have  been  a  full  disclosure  made  to  an  attorney  in 
regular  practice.  Of  course,  it  must  have  been  in 
good  faith,  for  an  attorney  and  client  will  not  be  per- 
mitted to  use  such  a  defense  as  a  cloak  for  their  col- 
lusive wrong. 

A  judgment  of  conviction  in  the  proceeding  com- 
plained of  is  generally  conclusive  evidence  of  the  ex- 
istence of  probable  cause,  even  though  an  appeal  be 
taken,  resulting  in  a  new  trial  and  subsequent  ac- 
quittal. But  if  the  conviction  was  secured  by  fraud 
or  perjury,  it  will  not  be  conclusive  evidence. 

An  acquittal  in  the  proceeding  complained  of  is 
competent,  but  not  conclusive  evidence  of  the  ab- 
sence of  probable  cause.  In  defense  to  the  action  for 
malicious  prosecution,  it  may  be  shown  that  the  charge 
is  true,  notwithstanding  the  acquittal.  For,  an  acquit- 
tal may  have  resulted  from  failure  to  establish  the 
charge  by  evidence  beyond  a  reasonable  doubt,  and 
yet  the  evidence  may  be  sufficient  to  establish  the 
charge  by  a  preponderance. 

§  301.  Proceeding  must  have  terminated. — Gen- 
erally such  termination  must  have  been  otherwise 
than  by  a  judgment  against  the  person  charged,  but 


186  ELEMENTARY  LAW.  §  302 

it  need  not  have  been  by  a  judgment  in  favor  of  the 
person  charged.  It  is  a  sufficient  termination  if  the 
grand  jury  ignores  a  bill,  where  a  person  has  been 
bound  over;  or  if  a  nolle  prosequi  be  entered;  or  if 
an  indictment  be  quashed;  or  if  the  accused  be  dis- 
charged from  bail  or  imprisonment.  All  that  is 
necessary  is  that  the  proceeding  shall  have  been  so 
disposed  of  that  it  can  not  be  revived,  and  that  the 
prosecutor,  if  he  intend  to  proceed  further,  must 
begin  anew. 

§  302.  Malicious  prosecution  of  civil  actions. — 
The  action  is  usually  brought  for  the  malicious  prose- 
cution of  some  criminal  proceeding.  But  it  is 
sometimes  also  allowed  on  account  of  civil  suits 
upon  the  same  principles. 

At  common  law  the  action  was  permitted  for  any 
proceeding,  civil  as  well  as  criminal,  upon  termina- 
tion in  favor  of  the  defendant,  but  when  by  statute 
costs  were  given  to  the  prevailing  party,  the  right  to 
maintain  an  action  for  malicious  prosecution  of  civil 
suits  was  limited  to  such  as  involved  the  arrest  of 
the  person,  the  seizure  of  his  property,  or  other  such 
special  injury.  And  this  is  the  rule  that  prevails  in 
many  states,  among  which  are  New  Jersey,  Pennsyl- 
vania, Maryland,  Iowa  and  Georgia.  Other  states 
have  followed  the  common  law  as  it  existed  prior  to 
the  statutes  giving  costs;  among  these  are  New  York, 
Indiana,  Vermont,  Connecticut,  Kentucky,  Kansas, 
Illinois  and  Missouri. 

§  303.  Malicious  abuse  of  process. — It  is  not  only 
for  proceedings  maliciously  begun  that  the  law  affords 
redress,  but  also  for  any  process,  either  civil  or  crim- 


§304  MALICIOUS  PROSECUTION.  187 

inal,  though  lawfully  begun,  if  it  is  made  use  of  for 
a  purpose  not  justified  by  law.  For  example,  a  judg- 
ment may  be  lawfully  recovered,  but  if  after  payment 
of  the  same,  the  creditor  maliciously  cause  execution 
to  be  issued  thereon  and  property  to  be  seized,  this 
is  an  abuse  of  process.  Or,  an  execution  may  be 
lawfully  issued,  yet  if  an  excessive  levy  be  made 
thereon  it  is  an  abuse  of  process.  It  is  generally 
necessary  in  order  to  sustain  an  action  for  abuse  of 
process  to  prove  both  malice  and  want  of  probable 
cause,  though  if  it  be  shown  that  the  abuse  was  for 
the  purpose  of  accomplishing  some  collateral  wrong- 
ful purpose  malice  and  want  of  probable  cause  may 
be  inferred. 

§  304.  Remedy. — The  remedy  for  malicious  prose- 
cution is  an  action  for  damages,  which  may  be 
brought  against  any  one  who  commences  or  procures 
another  to  commence  such  prosecution.  Public  offi- 
cers, however,  who  are  charged  with  the  duty  of 
bringing  such  prosecutions,  will  be  held  liable  only 
upon  very  clear  proof  of  malice. 

The  damages  recoverable  may  be  for  all  expenses, 
including  attorney's  fees  in  the  proceeding  complained 
of,  suffering  mental  and  physical,  loss  of  time  and 
business,  injury  to  property,  injury  to  reputation  and 
honor,  and  the  loss  of  social  position.  Where  the 
prosecution  was  with  great  malice  or  other  aggravated 
circumstances,  exemplary  or  punitive  damages  may 
be  allowed  in  addition  to  the  compensatory  damages. 
By  way  of  mitigation  of  the  damages  it  may  be 
shown  that  the  plaintiff  had  a  bad  character,  that 
his  conduct  was  such  as  to  arouse  suspicion,  that  any 


188  ELEMENTARY  LAW.  §  304 

reasons  for  probable  cause  existed  though  insufficient 
to  establish  it;  also  anything  that  goes  to  rebut  mal- 
ice. But  exemplary  damages  can  not  be  recovered 
where  the  acts  complained  of  are  punishable  crimi- 
nally,; 


CHAPTER  XXVII. 

DEFAMATION. 

§  305.  The  right  to  reputation. — The  theory  upon 
which  an  action  is  given  for  defamation  is  that  the 
person  was  entitled  to  a  good  reputation,  that  a  false 
statement  was  maliciously  made  affecting  the  repu- 
tation, and  that  damages  resulted  therefrom.  Al- 
though upon  general  principles  the  plaintiff  is  bound 
to  affirmatively  establish  all  of  the  elements  consti- 
tuting his  cause  of  action,  it  would,  in  nearly  all 
cases  of  defamation,  be  found  highly  inconvenient 
to  enforce  such  principles  strictly.  For,  the  nature 
of  the  charge  may  be  such  that  no  evidence  is  attain- 
able as  to  its  truth  or  falsity;  or,  it  may  be  impossible 
to  expressly  show  the  damage  done;  or,  a  stranger  in 
the  community,  having  acquired  no  reputation  as 
yet,  could  prove  no  actual  damage,  and  might  be 
wholly  unable  to  show  how  he  would  be  actually 
damaged  in  the  future.  Taking  into  consideration 
these  difficulties,  and  to  the  end  that  justice  may  not 
miscarry,  the  law  aids  the  person  defamed  by  mak- 
ing certain  presumptions  in  his  favor  and  throwing 
the  burden  upon  the  wrong-doer  to  produce  evidence 
to  justify  or  excuse  himself.  Therefore,  in  the  ab- 
sence of  evidence,  the  law  presumes : 

1st.  That  every  one  has  a  good  reputation. 

2d.  That  every  charge  against  reputation  is  false. 
(189) 


190  ELEMENTARY  LAW.  §306 

3d.    That  every  false  charge  is  maliciously  made. 

4th.  Where  injury  would  naturally  result,  that  it 
has  actually  resulted. 

§  306.  Libel  and  slander. — The  law  divides  def- 
amations into  two  classes.  False  defamatory  words, 
if  written  and  published,  constitute  libel;  if  published 
orally,  slander.  Libel  is  communicated  through  the 
medium  of  eyesight ;  slander  through  the  medium 
of  hearing.  By  reason  of  the  permanent  and  delib- 
erate character  of  libel,  it  is  regarded  as  of  a  more  ag- 
gravated nature  than  a  mere  slander,  which  may  be 
spoken  in  heat  and  excitement,  and  may  be  more 
easily  effaced  from  the  memory  of  the  hearers. 

While  there  is  much  that  is  common  to  both  libel 
and  slander,  there  are  some  points  in  which  they 
radically  differ.  It  will  be  convenient  to  consider 
each  separately,  in  so  far  as  they  are  variant,  and 
afterwards  to  note  the  principles  common  to  both. 

§  307.  Slander. — False  defamatory  words  spoken 
of  a  person  are  actionable  : 

1st.  Where  they  charge  an  indictable  offense, 
which  involves  moral  turpitude  or  would  subject  the 
person  to  an  ignominious  punishment. 

2d.  Where  they  charge  a  person  with  having  a 
contagious  or  infectious  disease,  tending  to  exclude 
him  from  society. 

3d.  Where  they  are  spoken  of  a  person  in  the  way 
of  his  office,  trade  or  profession. 

In  these  three  classes,  and  no  others,  the  law  pre- 
sumes without  proof  that  the  reputation  has  been  in- 
jured.    They  are  said  to  be  actionable  per  se. 

4th.  This  leaves  a  fourth  class,  in  which  the 
charge  is  such  that  damages  can  not  be  said  to  be 


§308  DEFAMATION.  191 

the  usual  and  natural  result,  and  therefore  the  law- 
does  not  presume  them,  but  requires  the  person  in- 
jured to  allege  and  prove  the  special  damages  suf- 
fered. 

§  308.  Slander  imputing  crime. — It  is  necessary 
that  the  acts  charged  be  such  as  are  indictable.  If 
not  indictable,  the  charge  is  not  actionable  per  se 
under  this  class,  unless  so  declared  to  be  by  statute. 

By  ignominious  punishment  is  meant  any  corpo- 
real punishment ;  as  death,  whipping,  or  imprison- 
ment. Punishment  by  fine  only  is  not  deemed  ig- 
nominious. But  if  the  penalty  be  in  the  alternative, 
by  fine  or  imprisonment,  the  offense  is  punishable 
ignominiously. 

What  does  and  what  does  not  involve  moral  turpi- 
tude, it  is  not  easy  to  define.  When  the  case  arises, 
it  is  usually  clear.  It  may  be  stated  to  be  whatever 
is  shocking  to  the  moral  sense  of  the  community. 
Slander  imputing  such  offense  is  actionable  per  se, 
even  though  the  offense  be  punishable  by  fine  only. 

Where  crime  is  charged,  it  is  immaterial  whether 
it  be  stated  that  the  part}r  has  been  punished  forsueh 
crime,  or  that  he  is  guilty  and  liable  to  be  punished. 
If  false,  the    charge    is    equally    actionable  per  se. 

Proper  to  be  included  in  this  class  are  certain 
charges  which  are  declared  by  statute  to  be  actionable 
per  se,  in  the  same  manner  as  charges  of  crime.  These 
are  usually  charges  affecting  the  chastity  of  a  woman, 
and  charges  of  certain  disgraceful  acts  by  cither  a 
man  or  a  woman.  In  some  states  the  charge  of  un- 
chastity  against  a  man  is  also  made  actionable  perse. 

The  imputation  of  crime  need  not  be  in  language 
that  technically  describes  the  crime.     It  is  sufficient 


192  ELEMENTARY  LAW.  §  309 

if  the  words  were  meant  and  understood  to  convey 
such  imputation. 

§  309.  Slander  imputing;  disease. — The  diseases 
intended  by  this  class  are  such  as  are  loathsome  or 
involve  moral  disgrace.  A  charge  that  one  has  the 
small-pox  is,  however,  not  deemed  to  be  actionable 
per  se.  It  is  essential  that  the  disease  be  charged  as 
existing  at  the  time.  If  the  statement  be  made  in 
the  past  tense,  it  is  not  actionable  per  se  under  this 
class. 

§  310.  Slander  affecting  one  in  his  office,  profes- 
sion or  trade. — It  is  essential  that  the  occupation  be 
one  that  is  recognized  by  the  law  as  legitimate,  and 
that  the  slander  touch  one  in  the  capacity  of  his 
occupation.  Hence  it  is  not  actionable  per  se  to  say 
of  a  gambler  that  he  cheats  in  cards.  But  it  is  ac- 
tionable per  se  to  say  of  an  attorney  that  he  disclosed 
professional  communications;  of  a  clergyman  that  he 
is  a  drunkard;  of  a  physician  that  he  is  guilty  of 
malpractice;  of  a  judge  that  he  takes  bribes;  of  a 
mechanic  that  he  is  incompetent.  It  is  also  essen- 
tial that  the  charge  be  made  while  the  person  is 
holding  or  pursuing  the  occupation.  If  made  after- 
wards it  is  not  actionable  per  se. 

§  311.  Slanders  actionable  only  by  reason  of  spe- 
cial damages. — A  satisfactory  enumeration  of  such 
cases  can  not  be  made.  Any  defamatory  words  that 
produce  actual  damage  may  give  a  cause  of  action. 
The  damages  must,  however,  be  such  as  are  deemed 
to  be  the  proximate  result  of  the  slander.  If  the 
damages  are  remote  there  is  no  cause  of  action.  It 
is  essential  that  the  damages  be  pecuniary  or  mate- 
rial, such  as  the  loss  of  a  marriage,  loss  of  employ- 


§312  DEFAMATION.  193 

ment,  loss  of  profits,   or  injury  to  business.     Mere 
mental  anxiety  and  distress  are  not  such  damag* 
will  support  the  action. 

§  312.  Slander  of  title. — Analogous  to  slander  of 
the  person  whereby  special  damages  are  suffered,  is 
what  is  called  slander  of  title,  i.  e.,  false  statements, 
either  oral  or  written,  with  reference  to  a  man's 
property  or  business  whereby  its  value  is  diminished. 
If  the  language  involves  the  reputation  of  the  owner 
it  may  be  actionable  as  slander  of  the  person.  But 
there  are  many  cases  in  which  only  the  property  or 
business  is  affected.  Such  language  is  not  in  the 
strict  sense  slander  or  defamation  at  all,  for  these 
are  concerned  with  reputation  only.  Inasmuch  as 
in  slander  of  title  reputation  is  not  involved,  there 
is  no  aid  given  by  the  presumptions  heretofore  men- 
tioned in  plaintiff's  favor.  The  plaintiff  must  es- 
tablish by  his  evidence,  1st,  that  the  words  were 
false;  2d,  that  they  caused  injury  to  the  title  or  prop- 
erty; 3d,  that  they  were  uttered  maliciously;  4th,  that 
plaintiff  had  the  title  or  interest;  5th,  that  there  was 
an  absence  of  probable  cause  for  using  the  words. 

§  313.  Libel. — A  libel  need  not  necessarily  be  in 
writing  or  print.  Any  caricature,  scandalous  paint- 
ing, drawing  or  effigy  may  constitute  a  libel.  Any 
spoken  charge  that  is  actionable  per  se  will  if  pub- 
lished in  writing  be  a  libel.  Hence,  it  is  libelous  to 
charge  in  writing,  crimes,  diseases,  or  scandals  affect- 
ing occupations.  But  libel  goes  further,  its  wider 
range  being  based  upon  the  deliberate  nature  of  the 
act,  its  permanent  form,  and  the  greater  damage 
caused. 

§  314.     Definition. — Any     false    and    defamatory 


194  ELEMENTARY  LAW.  §  315 

printing,  writing,  sign,  picture,  representation  or 
effigy,  tending  to  expose  any  person  to  public  hatred 
or  ridicule,  deprive  him  of  the  benefits  of  public  con- 
fidence or  social  intercourse,  or  designed  to  blacken 
and  vilify  the  memory  of  a  deceased  person  and 
tending  to  scandalize  and  disgrace  his  relations  and 
friends,  is  a  libel. 

It  is  not  necessary  to  prove  special  damages  in  any 
action  for  libel.  If  there  is  a  libel  at  all,  it  is  a  libel 
per  se. 

It  is  not  necessary  that  the  libelous  language  im- 
pute crime  or  even  disgraceful  conduct  ;  it  is  suffi- 
cient if  the  person  is  rendered  contemptible  or  ridicu- 
lous. 

As  to  charges  affecting  one's  occupation,  or  imput- 
ing diseases,  it  is  not  essential  in  libel  that  they  be 
made  in  the  present  tense,  as  is  the  case  in  slander. 
To  impute  by  libel  past  misconduct  or  past  diseases 
may  also  be  actionable. 

§  315.  Newspapers.— The  constitutional  guaranty 
of  freedom  of  the  press  is  often  misconstrued,  and  it 
is  popularly  supposed  that  newspapers  by  virtue  of 
their  public  nature  are  not  held  to  so  strict  ac- 
countability for  libel  as  mere  private  individuals. 
The  law  recognizes  no  such  distinction.  Freedom  of 
the  press  means  that  there  shall  be  no  censorship  by 
those  in  authority.  Any  man  is  free  to  write  or  pub- 
lish whatever  he  chooses  of  another,  but  subject  to  the 
legal  consequences  if  the  publication  be  defamatory. 
Newspaper  and  individual  must  defend  upon  the 
same  legal  grounds. 

We  pass  now  to  the  principles  common  to  both 
libel  and  slander. 


§31G  DEFAMATION.  195 

§  31G.  Publication. — It  is  essential,  in  order  to 
give  an  action  for  libel  or  slander,  that  the  defama- 
tory words  shall  have  been  published.  By  pub- 
lication is  meant  communication  to  a  third  person. 
of  the  words  be  heard  or  read  only  by  the  person 
against  whom  they  are  directed,  there  is  no  liability; 
for  his  reputation,  i.  e.,  the  estimation  in  which  he 
is  held  by  others,  is  not  thereby  injured.  And  if 
such  person  repeat  the  words,  or  show  the  letter  to 
others,  he  has  no  cause  of  action,  for  the  publication 
was  his  own  act.  But  it  is  not  material  that  the 
author  of  a  libel  or  slander  shall  have  intended  a 
publication ;  he  is  liable  if  in  fact  there  was  com- 
munication to  third  persons  otherwise  than  by  the 
act  of  the  person  defamed.  So,  if  one  shout  a  slan- 
der, he  is  not  liable  if  no  one  hears  or  understands, 
but  he  is  if  there  be  a  listener  known  or  unknown 
to  him.  And  so  it  is  publication  of  a  libel  if, 
after  the  author  has  parted  with  possession  of  it, 
it  is  read  by  one  whom  he  did  not  intend  to  read 
it.  Where  two  persons  composed  a  libel  together 
and  sent  it  to  the  plaintiff,  it  was  held  to  be  a 
publication,  the  part  that  each  took  being  a  publica- 
tion in  .the  hearing  and  knowledge  of  the  other. 
Every  repetition  of  a  slander  or  libel  is  a  fresh  pub- 
lication, and  gives  a  cause  of  action. 

The  law  regards  communications  between  husband 
and  wife  as  privileged,  therefore  communication  by 
either  to  the  other  of  defamatory  matter  against 
others  is  not  deemed  to  be  a  publication.  But  if 
such  communication  be  in  the  hearing  or  to  the 
knowledge  of  a  third  person,  there  is  a  publication. 


196  ELEMENTARY  LAW.  §317 

A  slander  or  libel  against  either  a  husband  or  wife, 
if  heard  or  read  by  the  other,  is  a  publication. 

§  317.  Construction.  —  The  general  rule  is  that 
words  are  to  be  understood  according  to  their  plain 
and  natural  import,  and  when  the  language  is  clear 
and  unambiguous  the  court  will  not,  ordinarily, 
allow  the  meaning  to  be  varied  by  testimony  that  the 
author  intended  or  the  hearers  understood  them  in  a 
different  sense.  For,  ordinarily,  the  presence  or  ab- 
sence of  an  intention  to  injure  can  not  change  the 
effect  of  the  language;  and,  on  the  other  hand,  the 
fact  that  some  persons  misunderstood  the  language, 
ought  not  to  determine  its  quality,  good  or  bad.  In 
the  large  majority  of  cases,  however,  there  is  room 
for  question  whether  the  language  is  to  a  greater 
or  less  degree  injurious  in  its  meaning.  Wherever 
by  reason  of  any  local  or  provincial  usage  words 
have  an  unusual  meaning,  or  wherever  by  reason  of 
any  special  circumstances  the  language  has  a  pecu- 
liar effect,  the  plaintiff  may  declare  what  such  mean- 
ing or  innuendo  is,  and  such  facts  may  be  given  in 
evidence  and  the  language  construed  in  the  light  of 
them.  Such  facts  may  be  shown  whether  the  result  be 
to  establish  either  an  innocent  or  a  harmful  meaning. 
In  cases  where  the  language  is  ambiguous  in  any  re- 
spect, the  law  has  undergone  some  modifications. 
In  the  earlier  actions  the  rule  was  that  the  words 
were  to  be  construed  in  the  most  favorable  sense,  the 
theory  being  that  such  construction  would  suppress 
litigation.  Later,  it  was  held  that  words  should  be 
taken  in  an  unfavorable  sense,  it  being  supposed 
that,  by  affording  legal  remedy,  resort  to  personal 
violence  for  redress  would  be  prevented.     Still  later 


§318  DEFAMATION.  197 

the  well  recognized  rule  was  that  the  courts  should 
affix  to  the  words  a  plain  and  natural  meaning.  The 
modern  rule,  however,  sustained  hy  the  weight  of 
authority  and  founded  in  better  reason,  is  that  where 
there  is  any  ambiguity  in  the  language  the  words 
may  be  construed  in  the  reasonable  sense  in  which 
the  hearers  or  readers  actually  understood  them,  and 
to  that  end  the  testimony  of  the  hearers  or  readers  is 
received,  together  with  evidence  of  all  the  surround- 
ing circumstances. 

The  meaning  actually  intended  by  the  author  is 
immaterial  upon  the  question  of  liability,  except  so 
far  as  he  may  have  made  it  apparent  at  the  time. 
If  his  ambiguous  language  was  intended  harmlessly, 
but  was  reasonably  understood  in  an  injurious  sense, 
he  is  responsible.  And  if  the  language  is  not  defam- 
atory and  was  not  so  taken,  there  is  no  injury, 
although  the  author  desired  and  intended  there 
should  be. 

§  318.  Certainty. — The  rule  of  law  is  that  there 
is  no  liability  unless  there  is  certainty,  (1)  as  to  the 
person  charged,  (2)  as  to  the  imputation  made.  The 
reference  must  be  to  some  ascertained  or  ascertain- 
able person,  who  must,  of  course,  be  the  plaintiff. 
The  person  may  be  ascertained  either  from  the  lan- 
guage itself  or  from  the  surrounding  circumstances 
which  give  peculiar  point  to  the  language.  So, 
where  the  reference  is  to  a  class  of  individuals  and 
not  to  any  member,  the  circumstances  may  be  such 
that  the  jury  can  determine  which  was  meant.  But 
to  merely  charge  as  to  two  witnesses  who  have  testi- 
fied contradictorily,  "one  of  you  two  has  committed 


19S  ELEMENTARY  LAW.  §319 

perjury,"  is  not  actionable,  for  it  is  not  and  can  not 
be  certainly  applied  to  either. 

The  imputation  made  must  be  certain,  or  capable 
of  being  made  certain.  The  words  need  not,  how- 
ever, be  technically  exact  as  a  description  of  the 
charge.  Any  words  that  distinctly  assume  guilt  in 
the  party  charged  are  sufficient.  But  it  is  not  essen- 
tial that  the  words  be  affirmative.  They  may  be 
actionable  where  the  form  of  the  language  is  inter- 
rogative; and  it  is  conceivable  that  a  statement  in 
the  negative  may  be  so  worded  or  emphasized  as  to 
convey  the  meaning  of  an  affirmative  charge.  In 
determining  whether  an  imputation  is  certain,  it  is 
proper  to  consider  not  only  the  words,  but  all  the 
surrounding  circumstances  that  may  give  especial 
force  to  language  used. 

§  319.  Malice. — By  most  law  writers  and  by  the 
courts  it  is  stated  that  malice  is  an  essential  ingredi- 
ent of  actions  for  libel  or  slander.  But,  as  in  cases 
for  malicious  prosecution,  the  term  malice  has  a 
peculiar  meaning.  It  is  not  synonymous  with  hatred 
or  ill-will.  Malice  may  in  a  legal  sense  exist,  where 
in  fact  the  defendant's  real  motive  was  to  benefit  the 
plaintiff.  For  example,  where  a  newspaper  publishes 
the  fact  that  a  defamatory  charge  has  been  made, 
and  adds  the  comment  that  the  publisher  believes  it 
to  be  false. 

Malice  is  said  to  be  either  express  or  implied  ;  and 
the  distinction  is  clearly  marked.  Radically  differ- 
ent principles  control.  As  the  equivalents  of  ex- 
press and  implied  malice,  the  words,  "  malice  in 
fact,"  and  "  malice  in  law,"  are  also  used. 

Some  confusion  in  the  law  has  resulted   from  the 


§319  DEFAMATION.  199 

failure  to  keep  the  distinction  clear.  The  courts  have 
often  used  the  word  malice  without  qualification  to 
express  either  meaning,  and  some  decisions  have 
therefore  been  misleading. 

Malice  in  law  or  implied  malice  is  such  as  the 
court  infers  without  evidence  of  malice.  The  infer- 
ence is  made  from  the  fact  of  the  falsity  of  the  charge, 
in  accordance  with  the  presumptions  heretofore 
noted.  This  inference  is  not  permitted  by  the  law  to 
be  overcome  by  evidence  that  the  motive  was  not  in 
fact  malicious.  It  can  be  overcome  only  by  showing 
that  the  words  complained  of  were  published  upon 
what  is  called  a  privileged  occasion.  On  account  of 
this  inflexible  rule  of  law,  some  text- writers  have 
sought  to  establish  the  proposition  that  there  is  but 
one  kind  of  malice,  i.  e.,  express  malice,  or  malice 
in  fact,  and  that  instead  of  holding  that  there  is 
"  malice  in  law  "  in  certain  cases,  the  courts  should 
hold  that  in  such  cases  malice  is  not  essential.  The 
results,  however,  are  the  same,  and  the  courts  have 
declined  to  adopt  the  nomenclature  urged  by  these 
text-writers. 

Express  malice,  or  malice  in  fact,  includes  actual 
malice  in  its  popular  acceptation.  As  an  eminent 
judge  said,  "It  means  a  wrong  feeling  in  a  man's 
mind."  Any  indirect  or  dishonest  motive  which  in- 
duces one  to  defame  another  may  be  malice.  Gross 
negligence  or  wantonness  in  the  disregard  of  other's 
rights  may  be  sufficient  evidence  to  warrant  a  finding 
that  malice  existed. 

Actual  malice  may  be  shown  by  intrinsic  evidence, 
viz.,  the  kind  of  language  used,  its  exaggerated 
character,  the  manner  of  its  publication;  or  it  may 


200  ELEMENTARY  LAW.  §  320 

be  shown  by  extrinsic  evidence,  viz.,  by  any  facts 
not  contained  in  the  publication  itself,  as  for  instance, 
by  other  publications,  subsequent  repetitions,  refusal 
to  retract,  the  existence  of  an  old  grudge.  Actual 
malice  is  always  a  question  to  be  determined  by  the 
jury,  and  not  by  the  court. 

By  reason  of  the  presumptions  in  plaintiff's  favor, 
above  referred  to,  it  results  that  the  questions  arising 
are  usually  as  to  the  sufficiency  of  the  facts  to  afford 
a  defense.     The  defenses  will  now  be  considered. 

§  320.  Justification. — In  libel  and  slander  this 
word  means  only  that  the  charge  made  is  true.  The 
presumption  being  that  a  defamatory  charge  is  false, 
the  burden  falls  upon  the  defendant  to  prove,  if  he 
can,  the  truth  of  the  charge.  And  the  uniform  rule 
is  that  if  the  defendant  wishes  to  avail  himself  of 
this  defense  he  must  affirmatively  plead  it.  This  is 
called  a  plea  or  answer  of  justification.  The  defend- 
ant may  always  defend  by  showing  the  truth  of  the 
imputation,  and  the  defense,  if  established,  is  com- 
plete; for,  there  can  be  no  legal  wrong  of  defamation 
by  speaking  the  truth  of  anyone.  Under  a  plea  of 
justification,  however,  the  defendant  must  show  that 
not  only  the  words  but  their  meaning,  as  alleged,  are 
true.  If  he  disputes  that  the  words  mean  what  they 
are  alleged  to  mean,  he  does  not  do  so  by  way  of 
justification,  but  to  that  extent  by  denial. 

It  is  a  principle  peculiar  to  civil  suits  for  libel  and 
slander  that  where  the  defamatory  charge  is  that 
crime  has  been  committed,  it  is  necessary,  in  order 
to  sustain  a  plea  of  justification,  to  prove  the  truth  of 
the  charge  by  the  same  degree  of  proof  that  would 
be  required  to  convict  the  party  if  under  indictment 


§321  DEFAMATION.  201 

for  the  crime.  In  other  words,  justification  of  a 
charge  of  crime  must  be  proven  beyond  a  reasonable 
doubt.  But  if  no  crime  is  charged  the  justification 
may  be  established  by  a  mere  preponderance  of  evi- 
dence. These  rules  have  been  modified  by  statute 
in  some  states. 

Where  justification  is  the  issue,  it  is  wholly  im- 
material to  the  question  of  liability  whether  the 
defendant  acted  maliciously  or  not.  If  the  charge 
is  true,  the  defense  is  complete,  even  though  there 
was  gross  malice;  and  if  the  charge  is  found  not 
true,  the  defendant  is  not  relieved  from  liability  by 
the  fact  that  he  acted  in  good  faith.  The  only  effect 
of  evidence  as  to  defendant's  motive  in  such  case 
can  be  to  enhance  or  diminish  the  amount  of  dam- 
ages recovered. 

§  321.  Privilege. — As  has  been  said,  the  truth  is 
a  complete  defense  in  libel  and  slander.  Wherever 
truth  is  shown  the  action  fails.  The  question  now 
arises,  when  does  the  law  excuse  a  defamatory  charge 
that  is  false  ?  Upon  grounds  of  public  policy,  com- 
mon convenience  and  the  general  welfare  of  society, 
there  must  be  immunity  upon  certain  occasions. 
Statements  made  upon  such  occasions  are  called 
privileged  communications.  They  are  divided  into 
two  classes  and  are  said  to  be  of  either  : 

1st.    Absolute  privilege. 

2d.    Qualified  privilege. 

It  is  to  be  noted  that  the  privilege  attaches  to  the 
occasion,  and  not  to  the  matter  stated,  for,  if  the 
same  matter  be  afterward  repeated  upon  an  unpriv- 
ileged occasion,  it  has  no  protection. 

§  322.  Absolute  privilege. — The  occasions  of  ab- 
solute privilege  are    few,  and  the   tendency  of    the 


202  ELEMENTARY  LAW.  §  323 

courts  is  to  narrow  rather  than  enlarge  them.  They 
rest  upon  the  ground  that  it  is  advantageous  to  the 
public  interests  that  persons  on  such  occasions 
should  not  be  fettered  in  their  statements.  The  cases 
of  absolute  privilege  fall  under  three  heads: 

1.  Legislative  proceedings. 

2.  Judicial  proceedings. 

3.  Naval  and  military  affairs. 

§  323.  Legislative  proceedings. — No  member  of 
either  house  of  congress,  or  of  either  house  of  the  state 
legislature,  is  in  any  way  responsible  in  a  court  for 
anything  he  may  say  in  such  house.  This  rests  upon 
the  provisions  common  to  the  constitutions  of  the 
United  States  and  several  states  that,  "  for  any 
speech  or  debate  in  either  house,  they  shall  not  be 
questioned  in  any  other  place."  The  privilege,  how- 
ever, is  confined  to  the  walls  of  the  house,  which  in- 
cludes its  committee-rooms.  If  the  member  publish 
the  speech  to  the  world,  he  is  liable  as  any  other  in- 
dividual would  be.  The  absolute  privilege  does  not 
extend  to  inferior  legislative  bodies. 

§  324.  Judicial  proceedings. — Everything  that  a 
judge  says  on  the  bench,  or  a  witness  on  the  stand, 
or  counsel  in  trying  and  arguing  a  cause,  is  abso- 
lutely privileged,  so  long  as  it  is  pertinent  to  the  in- 
quiry. 

A  judge  of  a  court  of  general  jurisdiction  is  free  to 
say  anything  concerning  a  case,  while  the  case  is  be- 
ing tried,  no  matter  what  his  knowledge  or  motive 
is,  and  whether  the  statement  is  relevant  or  not.  But 
a  judge  of  limited  jurisdiction  is  not  privileged, 
unless  the  statement  be  relevant  to  the  matter  in 
hand.     A    witness    on    the   stand   is    not   liable  for 


§  325  DEFAMATION.  203 

any  statement  he  may  make,  whatever  may  be  his 
knowledge  or  motive,  provided  such  statement  is 
drawn  out  by  questions,  or,  if  volunteered,  is  rele- 
vant or  believed  to  be  relevant  to  the  case.  For  any 
irrelevant  matter,  if  volunteered  from  a  malicious 
motive,  he  may  be  held  liable,  and  he  may  be  held 
liable  for  any  statements  made  while  not  on  the  stand, 
whether  in  or  outside  the  court  room. 

Counsel  in  a  cause  may  speak  any  words,  however 
defamatory  and  false,  and  whatever  may  be  their 
knowledge  or  motive,  provided  only  that  they  are 
acting  within  their  instructions  and  their  remarks 
are  pertinent  to  the  case.  They  may  draw  any  in- 
ference they  wish  from  the  evidence.  But  they  may 
not  recklessly  assert  anything  of  which  they  can 
give  no  evidence. 

All  pleadings,  affidavits  and  papers  in  a  cause  are 
absolutely  privileged.  Even  if  matter  be  intro- 
duced that  is  irrelevant  and  scandalous,  so  that  it  is 
struck  out  by  the  court  on  motion,  no  action  lies. 

§  325.  Naval  and  military  matters. — All  reports 
by  a  naval  or  military  officer  to  his  superior,  and  all 
testimony  or  argument  in  a  court-martial,  are  abso- 
lutely privileged.  In  all  cases  of  absolute  privilege, 
the  question  is  only  whether  the  defendant  has 
brought  himself  within  it.  If  he  has  not,  he  is 
liable  as  any  other  person  would  be;  if  he  has,  then 
the  question  of  his  malice  is  wholly  immaterial. 

§  326.  Qualified  privilege. — It  is  an  essential  ele- 
ment of  all  qualified  privileges,  that  the  communi- 
cation under  it  be  made  in  good  faith.  No  person 
is  allowed  to  take  advantage  of  qualified  privilege  to 
vent  his  malice. 


204  ELEMENTARY  LAW.  §  327 

Whenever  it  is  shown  that  the  language  complained 
of  was  uttered  upon  a  privileged  occasion,  the  law- 
ceases  to  presume  the  existence  of  malice,  and  re- 
quires proof  that  there  was  actual  malice.  As  it  is 
expressed,  the  privileged  occasion  rebuts  implied 
malice.  It  then  becomes  incumbent  upon  the  plaint- 
iff to  prove  that  the  defendant  was  actuated  by  ex- 
press malice — malice  in  fact;  and  unless  in  such  case 
the  plaintiff  does  establish  the  existence  of  malice 
in  fact  his  action  fails.  Whether  a  privilege  exists 
is  always  a  question  of  law  for  the  court;  whether 
the  defendant  was  actuated  by  the  proper  motive  is 
left  to  the  jury. 

In  all  cases  of  qualified  privilege  it  is  conclusive 
evidence  of  actual  malice  to  prove  that  the  defend- 
ant knew  the  charge  to  be  false.  For  it  is  incon- 
ceivable that  a  man  can  have  an  innocent  motive  in 
uttering  a  defamatory  charge  that  he  knows  to  be 
false. 

Cases  of  qualified  privilege  may  be  grouped  under 
three  heads : 

1.  Communications  made  in  matters  of  public  in- 
terest and  general  concern. 

2.  Communications  made  to  persons  to  whom  the 
defendant  owes  a  duty  to  make  communication. 

3.  Communications  made  in  self-defense. 

§  327.  Matters  of  public  interest  and  concern. — 
Anything  that  is  of  general  concern  to  the  inhabit- 
ants of  a  town,  city  or  community  is  what  is  intended. 
Though  the  matter  be  of  only  a  local  interest  the  rule 
applies,  so  long  as  the  matter  is  not  merely  of  private 
concern.  All  public  institutions  and  their  manage- 
ment, all   public    entertainments,  published    books, 


§327  DEFAMATION.  205 

pictures  publicly  exhibited,  the  architecture  of  pub- 
lic buildings  may  be  freely  criticised.  All  appeals 
to  the  public  are  subject  to  honest  criticism  and  the 
critic  will  not  be  liable  for  false  statements  made. 
Whoever  seeks  notoriety  or  invites  public  attention 
challenges  public  criticism  and  must  bear  the  burden 
of  honestly  made  statements,  even  though  they  may 
be  erroneous.  All  public  officials,  and  candidates 
for  office,  maybe  freely  criticised,  provided  the  criti- 
cism be  made  in  good  faith. 

But  whenever  matters  of  general  concern  are  com- 
mented upon,  the  speaker  or  writer  is  bound  to  con- 
fine himself  to  what  is  of  public  nature.  If  this 
limit  is  transcended  and  private  matters  or  private 
character  touched  upon,  no  privilege  can  be  claimed 
therefor.  For  instance,  though  the  official  acts  of  an 
officer  may  in  good  faith  be  commented  upon,  by 
reason  or  by  ridicule,  even  though  the  statements  be 
in  fact  false  and  injurious,  yet  if  the  critic  should  go 
beyond  the  public  matter,  and  falsely  accuse  the  offi- 
cer of  a  crime,  it  would  affect  him  privately,  and  no 
protection  would  be  given. 

Reports  of  judicial  proceedings  are  upon  matters 
of  public  interest.  Every  fair  and  accurate  report  of 
judicial  proceedings  is  privileged,  though  false  de- 
famatory matter  be  contained  in  it.  The  privilege 
does  not  attach,  however,  where  the  publication  is 
prohibited  by  the  court,  or  where  the  matter  is  ob- 
scene ;  for  in  such  case  the  publisher  is  guilty  of 
wrong  in  the  very  fact  of  publishing,  and  will  not  be 
permitted  to  avail  himself  of  a  legal  protection  for 
such  wrong.  The  report  to  be  privileged  must  be 
substantially   a   fair  account  of  what  actually  took 


206  ELEMENTARY  LAW.  §  328 

place  in  court.  The  reporter  may  not,  however,  se- 
lect damaging  parts  and  omit  the  beneficial  parts  ; 
and  he  has  no  privilege  to  comment  on  the  evidence 
and  give  his  opinion  of  it.  Indeed,  if  he  mixes  up 
comment  with  what  would  otherwise  be  a  fair  report, 
the  privilege  is  lost  for  the  whole  article. 

Fair  and  accurate  reports  of  proceedings  of  the 
legislature  stand  upon  the  same  footing,  and  are  sub- 
ject to  the  same  limitations,  as  in  case  of  judicial 
proceedings.  No  other  reports  are  privileged.  No 
privilege  can  be  claimed  for  reports  of  the  doings  of 
municipal  legislatures,  public  meetings,  political 
meetings,  or  stockholders'  meetings. 

§  328.  Communications  made  under  duty. — There 
is  no  liability  for  honest  mistakes,  where  an  employer 
is  asked  to  give  a  statement  regarding  the  character 
of  a  servant.  But  there  is  no  protection  given,  if  the 
false  statement  be  made  from  an  improper  motive, 
or  if  made  recklessly  and  wantonly.  There  is  no 
privilege  for  officious  intermeddling,  as  where  no  in- 
quiry has  been  made,  or  where  there  is  no  duty  to 
speak. 

Answers  made  in  good  faith  to  inquiries  about 
persons  with  whom  business  dealings  are  contem- 
plated are  protected  even  though  they  turn  out  to  be 
false.  Hence,  reports  of  mercantile  agencies  to  their 
customers  are  privileged,  if  made  in  good  faith. 

So,  inquiries  by  and  answers  to  one  interested  in 
discovering  a  wrong-doer,  are  privileged.  Any  rela- 
tion of  confidence  is  sufficient  to  raise  a  duty  to 
make  communications,  and  if  they  are  made  in  good 
faith  they  are  privileged.  The  following  relations 
have  been   held  to  be  of  the  privileged  character  : 


§329  DEFAMATION.  207 

Husband  and  wife,  father  and  child,  brothers  and 
sisters,  guardian  and  ward,  master  and  servant,  prin- 
cipal and  agent,  landlord  and  tenant,  lawyer  and 
client,  partners,  and  in  one  case  it  was  held  that  in- 
timate friendship  might  be  a  sufficient  ground. 

§329.  Communications  in  self-defense. — If  the 
statement  complained  of  be  one  which  has  been  in- 
vited or  requested  by  the  plaintiff,  it  is  privileged, 
even  though  false,  provided  it  be  made  in  good  taith. 
For  example,  if  the  defendant  had  previously  made 
the  statement  under  a  privilege,  and  the  plaintiff  de- 
mands an  explanation  in  the  presence  of  strangers, 
or  if  defamatory  words  had  been  said  by  the  defend- 
ant to  the  plaintiff  alone,  and  plaintiff  afterwards 
bring  a  stranger  and  demand  whether  defendant  had 
used  the  defamatory  words,  such  subsequent  state- 
ments are  deemed  to  be  made  in  self-defense  and  are 
privileged  if  in  good  faith. 

§  330.  The  remedy. — The  civil  remedy  for  libel  or 
slander  is  an  action  for  damages.  The  courts  will 
not  interfere  by  injunction  to  restrain  the  publication 
of  a  libel  or  slander,  for  the  reason  that  it  must  first 
be  established  before  a  jury  whether  the  matter  is  or 
is  not  actionable.  But  after  a  verdict  for  the  plaint- 
iff, a  court  of  equity  may  enjoin  the  subsequent  repe- 
titions of  the  defamatory  matter. 

§  331.  The  damages. — Considered  from  the  point 
of  view  of  the  jury,  the  damages  awarded  may  be: 

1st.  Contemptuous,  as  where  the  defendant  has 
been  technically  guilty  of  defamation,  but  the  jury 
think  the  plaintiff  greatly  in  fault,  and  therefore 
assess  the  damages  at  a  nominal  sum. 

2d.    Substantial  or  compensatory,  where  the  jury 


208  ELEMENTARY  LAW.  §  331 

aims  to  arrive  at  the  actual  injury  suffered  by  the 
plaintiff. 

3d.  Exemplary  or  punitive,  where  the  jury  seek 
to  express  their  sense  of  the  defendant's  harsh  and 
malicious  conduct  by  fining  him  in  an  amount  be- 
yond the  compensatory  damages. 

Considered  from  the  judge's  point  of  view  the 
damages  assessed  may  be  either  : 

1st.  General  damages,  viz.,  the  natural  and  prob- 
able consequences  of  the  false  charge,  which  are 
presumed  by  the  law  without  evidence  in  all  cases 
where  the  words  are  actionable  per  se. 

2d.  Special  damages,  viz.,  such  as  the  law  will 
not  infer,  but  requires  to  be  established  by  evidence. 

Wherever  general  damages  are  recoverable,  special 
damages  may  also  be  recovered  if  specially  pleaded 
and  proven.  Where  a  charge  is  not  actionable  per 
se,  there  is  no  cause  of  action  unless  the  special  dam- 
ages be  alleged  and  proven,  and  the  recovery  is  lim- 
ited to  such  special  damages. 

The  amount  recoverable  by  the  plaintiff  as  com- 
pensatory damages  may  be  larger  or  smaller  accord- 
ing to  the  evidence.  Whatever  goes  to  show  the 
greater  extent  of  the  injury  is  said  to  be  in  aggrava- 
tion of  damages;  whatever  goes  to  show  the  less 
extent  of  the  injury  is  said  to  be  in  mitigation  of 
damages. 

By  way  of  aggravation,  evidence  may  be  received 
of  the  social  position  and  influence  of  both  plaintiff 
and  defendant  and  their  pecuniary  circumstances  so 
far  as  the  same  may  bear  upon  the  influence  exerted  by 
the  charge,  the  publicity  of  the  charge,  the  fact  that 
it  was  wholly  unprovoked,  and  by  some  courts  it  is 


§331  DEFAMATION.  209 

held  that  an  unsuccessful  plea  of  justification  may 
be  considered  in  aggravation,  though  such  is  not  the 
general  rule. 

By  way  of  mitigation  of  damages,  evidence  maybe 
received  that  the  words  were  spoken  in  passion  or 
excitement  provoked  by  plaintiff,  and  hence  all  the 
injury  is  not  attributable  to  defendant's  fault  ;  that 
the  defendant  had  no  actual  malice,  was  insane  or 
drunk,  so  far  as  the  same  may  have  appeared  at  the 
time  of  the  defamation,  and  so  have  caused  the 
wrong  to  have  a  less  injurious  effect;  that  plaintiff's 
character  was  bad,  or  that  general  rumors  existed 
that  he  was  guilty  ;  that  the  defendant  has  made 
ample  retraction.  While  the  fact  that  others  had 
previously  published  the  same  defamatory  matter  is 
not  in  itself  admissible  in  mitigation,  yet  the  de- 
fendant ought  not  to  be  held  liable  for  any  injury 
not  resulting  from  his  act,  and  it  seems  that  evi- 
dence of  previous  publication  by  others  will  be  re- 
ceived, if  it  can  be  shown  that  part  ot  the  injury 
claimed  by  plaintiff  was  in  fact  caused  by  such  other 
publications  and  not  by  the  defendant's  act.  Whether 
upon  a  plea  of  justification  only,  any  evidence  in 
mitigation  may  be  given  has  been  a  disputed  ques- 
tion, but  the  weight  of  authority  is  that  such  evi- 
dence may  be  admissible,  whatever  the  issue. 

Exemplary  or  punitive  damages  are  based  upon 
the  mental  attitude  of  the  wrong-doer,  and  are  by 
way  of  rebuke  or  punishment  for  his  malice.  They 
may  be  given  on  account  of  the  violent  or  ex- 
aggerated character  of  the  charge  as  showing  deliber- 
ate malice.  Evidence  may  be  received  of  previous 
14 


210  ELEMENTARY  LAW.  §  331 

transactions  that  indicate  malice  in  the  case  at  bar; 
of  recklessness  in  uttering  the  false  statement  ;  of 
the  publicity  and  repetitions  of  the  charge,  as  show- 
ing unusual  malice  ;  of  a  refusal  to  listen  to  explana- 
tions, or  after  explanation  to  make  retraction.  It  is 
the  uniform  rule,  however,  that  exemplary  damages 
can  not  be  allowed  where  the  defamation  is  punish- 
able criminally.  Hence,  where  libel  is  an  indictable 
offense,  evidence  of  the  defendant's  actual  motive, 
malicious  or  otherwise,  is  not  properly  admissible, 
except  so  far  as  it  can  be  shown  to  have  affected  the 
actual  injury. 

It  is  to  be  noted  that  in  slanders  of  the  fourth 
class,  i.  e.,  those  actionable  only  by  reason  of  special 
damages,  the  plaintiff  is  confined  to  such  actual  in- 
jury as  he  alleges  and  proves,  and  since  exemplary 
damages  are  not  based  upon  actual  injury,  it  follows 
that  in  cases  of  slander  not  actionable  per  se,  no  ex- 
emplary damages  can  be  recovered. 


CHAPTER  XXVIII. 

WRONGS  TO  CIVIL  AND  POLITICAL  RIGHTS. 

§  332.  General  nature. — In  a  large  sense  every 
right  is  a  civil  or  political  right.  The  right  to  be  free 
from  assault  is  one  phase  of  the  civil  right  to  life, 
liberty  and  the  pursuit  of  happiness.  So  of  the  right 
to  reputation  and  personal  freedom. 

It  is  now  intended,  however,  to  cover  such  civil 
rights  as  every  person  has  in  a  public  wa}T — rights 
in  and  toward  the  community.  Many  of  these  will 
be  found  to  be  rights  of  imperfect  obligation,  in  so 
far  as  the  law  does  not  undertake  to  redress  infringe- 
ments upon  them. 

It  may  be  stated  as  a  general  rule  that  all  such 
rights  are  held  subject  to  the  control  of  the  sovereign 
power,  and  by  that  power  may  be  curtailed  or  en- 
larged. Many  are  protected  by  the  constitution  and 
can  be  affected  only  by  amendment  of  the  constitu- 
tion. Others  are  subject  to  modification  from  time 
to  time  by  legislative  enactment.  For  any  alterations 
of  rights  by  the  sovereign  power  or  by  its  representa- 
tives within  their  authority,  it  is  clear  that  there  can 
be  no  remedy. 

§  333.  The  right  of  Suffrage. — Every  qualified 
voter  has  the  right  to  cast  his  vote  and  have  it  duly 
counted.     He  may  be  deprived  of   that  right    in  a 

(211) 


212  ELEMENTARY  LAW.  §  334 

number  of  ways,  by  force  or  by  misconduct  of  offi- 
cers or  other  voters.  It  is  only  for  a  small  part  of 
the  wrongs  in  this  matter  that  the  law  gives  a  pri- 
vate right  of  action.  Where  officers  have  neglected 
or  refused  to  perform  the  preliminaries,  so  that  votes 
can  not  be  honestly  and  lawfully  counted,  the  princi- 
pal injury  is  not  to  any  individual,  but  to  the  com- 
munity. The  loss  is  general,  not  special.  So,  also, 
where  the  officers  have  received  illegal  votes,  it  is  the 
general  injury  to  the  community,  rather  than  the  in- 
jury to  any  individual  that  is  involved.  In  such 
cases  the  law  gives  no  action  in  favor  of  private  per- 
sons, but  leaves  the  wrong-doer  to  be  punished  un- 
der criminal  process.  There  may  be  conduct,  how- 
ever, by  which  the  principal  and  direct  injury  is  to 
the  individual,  though  there  is  present  also  a  public 
injury,  as  where  by  force  or  threats  one  is  kept  away 
from  the  polling  place,  or  prevented  from  casting 
his  vote,  or  where  the  officers  willfully  and  ma- 
liciously refuse  to  permit  one  to  cast  his  lawful  bal- 
lot, or  where  the  officers  wrongfully  invade  the 
voter's  right  to  secrecy  of  the  ballot.  In  such  cases 
the  law  permits  the  injured  voter  to  recover  in  an 
action  for  damages  against  the  wrong-doer. 

§  334.  The  right  to  assemble. — The  right  of  citi- 
zens to  assemble  in  a  peaceable  manner  to  consult 
for  their  common  good  is  a  political  right  that  is 
generally  secured  by  the  constitutions  of  the  states. 
Whoever  prevents  any  citizen  from  exercising  this 
right  may  be  held  guilty  of  a  wrong.  If  force  is 
used,  the  remedy  may  be  an  action  for  assault,  bat- 
tery or  false  imprisonment,  in  which  the  deprivation 
of  the   right  will  enter  as  an  element  of  damages. 


§335  WRONGS  TO  CIVIL  AND  POLITICAL  RIGHTS.     213 

But  the  wrong  may  consist  in  merely  obstructing  one 
from  entering  the  meeting,  and  though  such  act  may 
not  amount  to  a  battery  or  imprisonment,  yet  the 
law  will  afford  redress  by  an  action  for  damages. 

§  335.  The  right  to  bear  arms. — This  right  is 
guaranteed  by  federal  and  state  constitutions  to  every 
citizen.  As  used  in  the  constitutions  the  word  "arms" 
has  the  military  sense  and  refers  to  such  weapons  as 
are  suitable  for  the  general  defense  of  the  commu- 
nity, and  does  not  include  such  weapons  as  are 
peculiarly  adapted  to  individual  encounters.  There- 
fore it  would  not  be  unconstitutional  to  prohibit  the 
carrying  of  such  weapons  as  the  siungshot.  The 
constitution  does  not  forbid  the  passage  of  laws 
against  carrying  weapons  concealed  or  against 
carrying  weapons  openly  with  intent  to  use  them 
unlawfully. 

It  is  evident  that  the  invasion  of  this  right  must 
always  be  at  the  hands  of  the  state,  and  accordingly 
there  can  be  no  recovery  of  damages  in  favor  of  one 
injured.  His  remedy  must  be  to  have  the  statute 
declared  unconstitutional. 

§  336.  Freedom  of  speech  and  of  the  press. — The 
constitutions  of  the  United  States  and  of  the  several 
states  prohibit  the  enactment  of  any  laws  restricting 
the  right  to  speak,  write  or  print  freely  on  any  sub- 
ject. The  intent  of  these  provisions  is  to  forbid 
censorship  or  control  by  persons  who  exercise  the 
power  of  the  state.  Freedom  of  speech  or  press  is 
not  thereby  enlarged,  but  only  protected  against  in- 
vasion. There  is  no  unlimited  freedom  of  speech 
or  press.  The  right  must  be  exercised  subject  to  the 
bounds  fixed  by  law.     Liberty  of  the  press  consists  in 


214  ELEMENTARY  LAW.  §  337 

printing  without  any  previous  license,  but  subject  to 
the  consequences  of  law. 

The  right  of  free  speech  and  press  does  not  war- 
rant a  man's  using  blasphemous,  obscene  or  seditious 
language.  Legislation  directed  against  such  speak- 
ing, writing  or  printing  is  uniformly  held  to  be  con- 
stitutional. The  user  of  such  language  may  be 
punishable  criminally,  and  when  the  language  is 
part  of  some  civil  wrong,  it  may  be  a  valid  ground 
for  increasing  the  amount  recovered  in  a  civil  suit. 
Where  the  direct  and  natural  consequence  of  such 
language  is  to  cause  injury,  the  user  may  sometimes 
be  held  liable  for  the  consequences,  criminally  or 
civilly. 

No  man  may  abuse  the  right  of  free  speech  or  free 
press,  by  slandering  or  libeling  another.  The  cases 
where  one  is  not  held  responsible  in  damages  for 
false  statements,  spoken  or  written,  have  been  shown 
in  the  sections  relating  to  privileged  communica- 
tion under  the  subject  of  libel  and  slander. 

§  337.  The  right  to  office.— The  right  to  enjoy  an 
office,  to  which  one  has  been  duly  elected,  may  be 
violated  by  any  one  who  excludes  such  officer  there- 
from, and  the  law  will  afford  redress  not  only  by 
ousting  the  wrong-doer,  but  also  by  giving  damages 
against  him  for  his  wrongful  act. 

§  338.  Religious  liberty. — The  right  to  the  com- 
plete enjoyment  of  religious  freedom  is  subject  only 
to  the  sovereign  power  of  the  state.  This  power  can 
be  exercised  in  restraint  only  so  far  as  the  public 
good  may  require,  taking  into  consideration  the  cir- 
cumstances of  the  people  and  the  general  moral 
sense.     Within  this  limit  the  legislature  may  impose 


§  339  WRONGS  TO  CIVIL  AND  POLITICAL  RIGHTS.     J  1  ."> 

restrictions.  Therefore  it  may  prohibit  sacrifices  of 
human  beings  or  animals,  may  prohibit  polygamy 

or  any  other  immoral  practice.  These  are  not  strictly 
invasions  of  the  right. 

The  right  may,  however,  be  invaded  by  individuals 
in  any  of  the  ways  that  the  exercise  of  political 
rights  may  be  invaded,  and  the  law  will  afford  re- 
dress by  an  action  for  damages.  It  frequently  hap- 
pens, as  in  the  case  of  political  rights,  that  the 
violation  of  religious  liberty  is  incidental  to  some 
wrong  that  is  actionable  upon  other  grounds. 

§  339.  The  right  to  an  education. — Where  the 
state  makes  provision  for  education  it  is  bound  to  do 
so  upon  equal  terms  to  all  citizens.  The  citizen  has 
then  a  civil  right  to  the  benefits.  Whoever  violates 
this  right  by  wrongfully  depriving  another  of  such 
educational  privileges  may  be  liable  in  an  action  for 
damages.  And  if  the  wrong  be  by  the  act  of  an 
officer  charged  with  the  duty  of  furnishing  such 
privileges,  there  may,  in  many  cases,  be  a  remedy  by 
mandamus. 

§  340.  Unlawful  searches. — The  right  to  be  pro- 
tected against  unlawful  searches  is  secured  by  the 
constitutions.  Every  citizen  is  entitled  to  maintain 
the  privacy  and  secrecy  of  his  home  and  business, 
whatever  may  be  his  reason  for  doing  so.  Whoever 
invades  this  right  by  a  search  that  is  not  provided 
for  by  law  may  be  liable  therefor  in  damages,  and 
where  a  search  is  made  under  legal  process,  if  the 
process  be  used  for  a  wrongful  purpose,  or  if  acts  be 
done  in  excess  of  its  authority,  the  wrong-doer  may 
be  held  liable  in  an  action  for  abuse  of  process  or 
other  appropriate  action. 


216  ELEMENTARY  LAW.  §  341 

§  341.  Performance  of  official  duties. — Wherever 
the  law  clothes  one  or  more  persons  with  power  and 
imposes  the  duty  to  do  certain  acts,  the  correspond- 
ing right  exists  in  the  public  or  in  individuals  to 
have  that  duty  correctly  and  honestly  performed. 
The  duty  may  be  violated  either  through  mere  honest 
error,  or  through  malicious  and  corrupt  motives. 
But  it  is  not  for  every  such  violation  that  the  law 
gives  a  remedy,  and  for  some  violations  the  only 
remedy  i£  in  an  action  by  the  state,  by  mandamus  or 
prohibition,  by  indictment  or  by  impeachment. 

In  order  to  determine  what,  if  any,  remedy  exists, 
the  act  in  question  must  be  submitted  to  several  tests. 

One  test  is  whether  the  act  was  within  or  in  excess 
of  the  authority  conferred.  If  within  authority  the 
officer  is  generally  protected,  if  in  excess  he  may 
not  be. 

Another  test  is  whether  the  act  in  question  be  one 
that  involves  the  exercise  of  judgment  or  discretion 
as  to  the  manner  and  propriety  of  doing  it,  or  whether 
it  is  merely  ministerial,  i.  e.,  the  manner  and  pro- 
priety of  its  performance  is  precisely  fixed  by  law. 
For  acts  of  the  discretionary  kind  the  officer  gener- 
ally enjoys  immunity  from  suit;  for  acts  that  are 
merely  ministerial,  he  may  be  held  responsible  in 
legal  proceedings. 

Still  another  test  lies  in  the  effect  of  the  act  in 
question.  Every  violation  of  official  duty  is  in  some 
sense  an  injury  to  both  the  public,  as  a  whole,  and 
to  every  individual  of  the  community.  There  are, 
however,  some  official  duties  that  are  imposed  pri- 
marily for  the  public  benefit,  and  that  affect  indi- 
viduals only  incidentally;  and  again  there  are  duties 


§  342  WRONGS  TO  CIVIL  AND  POLITICAL  RIG  1 1  IS.     2  1  7 

that  are  imposed  primarily  for  individual  benefit, 
though  they  may  also  have  an  incidental  public 
effect.  For  example,  on  the  one  hand,  embezzle- 
ment of  public  funds  by  an  officer;  on  the  other 
hand,  refusal  by  a  sheriff  to  execute  a  lawful  civil 
writ.  In  the  former  case  there  is  no  private  right  of 
action,  but  the  remedy  is  confined  to  the  state;  in 
the  latter  case,  the  one  specially  injured  may  gener- 
ally have  redress. 

It  will  be  of  advantage  to  consider  more  in  detail 
the  acts  of  various  official  bodies  and  persons,  in 
order  to  ascertain  the  quality  of  the  acts,  and  the 
remedies,  if  any,  that  are  given. 

§  342.  Duties  of  the  legislature. — It  is  obvious 
that  all  of  the  legislature's  acts  are  governmental 
and  discretionary.  In  their  nature,  its  powers  are 
exercised  primarily  for  the  public  benefit  and  only 
secondarily  for  private  benefit.  The  legislature  as  a 
body  can  have  no  ministerial  duties  to  perform. 
Hence,  even  though  the  majority  or  all  of  the  legis- 
lators may  in  a  special  instance  have  acted  from  ma- 
licious and  corrupt  motives,  whereby  injury  has  been 
caused  to  an  individual,  there  can  be  no  remedy  by 
private  suit. 

Subordinate  legislative  bodies,  however,  such  as 
municipal  councils,  are  subject  to  inquiry  in  the 
courts  at  the  suit  of  individuals,  in  so  far  as  they  act 
corruptly.  Such  subordinate  bodies  may  further- 
more have  duties  to  perform  that  are  merely  minis- 
terial ;  for  example,  keeping  streets  in  repair.  For 
the  wrongful  performance  or  non-performance  of 
such  duties,  if  primarily  for  individual  benefit,  they 
may  be  held  liable  at  the  suit  of  one  specially  injured. 


218  ELEMENTARY  LAW.  §343 

Acts  of  the  legislature  in  excess  of  its  authority  are 
void,  and  will  be  so  declared  by  the  courts.  Acts  of 
subordinate  legislative  bodies  in  excess  of  authority 
will  not  only  be  declared  void,  but  where  special  in- 
jury has  resulted  therefrom  to  an  individual,  he 
may  have  redress. 

§  343.  Executive  and  administrative  duties. — 
The  executive  power  of  the  United  States  is  vested  in 
the  president,  and  of  the  several  states  in  the  govern- 
ors. In  the  exercise  of  their  respective  executive 
functions,  they  are  not  responsible  to  the  courts, 
upon  the  fundamental  principle  that  the  three  co- 
ordinate branches  of  the  government  must  be  inde- 
pendent of  each  other's  control.  So  long  as  an  act 
is  within  the  executive  power,  it  can  not  be  re- 
viewed by  the  courts,  no  matter  whether  the  motive 
be  malicious  and  corrupt,  and  whether  it  causes 
special  injury  to  an  individual.  The  only  remedy, 
if  any  there  be,  would  be  by  way  of  impeachment. 

Inferior  officers  charged  with  duties  to  carry  into 
effect  the  laws  are  usually  called  administrative  offi- 
cers. The  protection  to  such  officers  acting  within 
their  powers  extends  only  to  their  errors.  If  such 
an  officer  acts  corruptly  or  maliciously,  he  may  be 
held  liable  to  civil  suit  by  an  individual  injured. 

Any  executive  or  administrative  officer  may  be 
charged  with  the  performance  of  duties  that  are 
merely  ministerial.  As  to  such  duties,  the  officer  is 
subject  to  the  control  of  the  courts  by  the  writ  of 
mandamus,  or  may  be  held  liable  for  damages  to  an 
individual  specially  injured. 

Whenever  an  officer  acts  in  excess  of  his  authority, 


§  344  WRONGS  TO  CIVIL  AND  POLITICAL  RIGHTS.     219 

he  to  that  extent  incurs  all  the  responsibility  of  an 
individual. 

§  344.  Judicial  duties.— Judicial  acts  necessarily 
involve  the  exercise  of  judgment  or  discretion.  For 
such  acts  there  is  complete  and  absolute  immunity 
from  civil  suits.  So  long  as  they  act  within  their 
jurisdiction,  judges  can  not  be  held  liable  civilly, 
however  gross  the  error  may  be,  or  however  corrupt 
and  malicious  the  motive  that  inspires  the  act.  This 
is  now  the  well  settled  law,  older  cases  affirming  a 
contrary  doctrine  having  been  overruled.  The  rule 
applies  with  equal  force  to  courts  of  special  and  lim- 
ited jurisdiction,  as  to  those  of  superior  and  general 
jurisdiction. 

The  strong  reason  upon  which  the  rule  rests  is  in 
public  policy.  It  is  deemed  more  advantageous  to 
the  public  that  judges  shall  be  wholly  free  from  fear 
of  private  suit.  The  frailty  of  human  nature  is  such 
that  an  honest  litigant,  firmly  convinced  of  the  jus- 
tice of  his  cause,  is  prone  upon  an  adverse  decision 
to  believe  that  the  judge  can  not  have  acted  with 
pure  motives.  The  decision  must  always  be  against 
one  party  or  the  other,  and  if  it  were  permitted  to 
sue  a  judge  for  a  corrupt  decision,  every  honest 
judge  might  be  hampered  by  the  fear  of  suits  brought 
by  those  who  feel  aggrieved  at  his  decisions.  Such  a 
fear  would  to  a  greater  or  less  extent  necessarily  im- 
pair the  efficiency  of  the  judges.  It  is  therefore 
deemed  best  to  clothe  the  judge  while  acting  within 
his  jurisdiction  with  complete  immunity  from  pri- 
vate suits,  and  to  leave  the  remedy  in  the  hands  of 
the  state  only. 

By    the    phrase,    "having    jurisdiction,"    is    not 


990  ELEMENTARY  LAW.  §  345 

meant  merely  the  having  jurisdiction  of  the  special 
case  before  the  court,  but  the  having  jurisdiction  of 
that  class  of  cases.  From  this  results  a  distinction 
between  courts  of  general  jurisdiction  and  those  of 
limited  jurisdiction.  The  former  have  as  a  part  of 
their  jurisdiction  the  right  to  determine  whether  the 
special  case  before  them  comes  within  their  general 
jurisdiction,  the  latter  have  the  limits  of  their  juris- 
diction fixed  with  precision,  and  are  bound  to  con- 
fine themselves  within  such  limits.  In  the  former 
case  the  judge  can  not  be  held  liable  for  mere  error, 
but  may  be  liable  if  he  acted  maliciously  and  cor- 
ruptly with  knowledge  that  he  had  not  jurisdiction  ; 
in  the  latter  case  the  judge  may  be  held  liable  for 
his  error,  as  well  as  for  malice  and  corruption. 

Judicial  officers  often  have  imposed  upon  them 
duties  which  are  merely  ministerial.  As  to  such 
they  do  not  act  judicially.  For  example,  after  a  bill 
of  exceptions  has  been  settled,  the  signing  of  it  by 
the  judge  is  a  ministerial  act  and  may  be  enforced  by 
mandamus.  It  is  a  general  rule  that  for  failure  to 
perform  ministerial  acts,  judges  are  liable  the  same 
as  other  ministerial  officers. 

§  345.  Public  duties  by  private  persons.— There  is 
a  class  of  duties  that  are  assumed  by  private  persons 
or  corporations,  in  consideration  of  the  grant  to 
them  of  certain  privileges  at  the  hands  of  the.  state. 
These  duties  are  generally,  if  not  wholly,  for  the 
primary  benefit  of  individuals  of  the  community, 
rather  than  for  the  benefit  of  the  public  as  a  whole. 
Among  these  are  the  duties  of  common  carriers,  inn- 
keepers, water  companies  and  gas  companies.  Such 
persons  or  corporations  are  bound  to  permit  the  en- 


§  346  WRONGS  TO  CIVIL  AND  POLITICAL  RIGHTS.     22  1 

joyment  of  their  privileges  to  all  individuals  of  the 
community  upon  impartial  regulations,  and  for  a 
violation  of  such  impartiality  they  may  he  held 
liable  at  the  suit  of  an  individual  specially  injured. 
Where,  as  in  case  of  railroads,  water  and  gas  com- 
panies, valuable  public  rights  have  been  granted  to 
the  person  or  corporation,  the  courts  may  sometimes 
compel  by  mandamus  the  performance  of  the  public 
duty.  There  is,  however,  a  margin  of  discretion 
within  which  there  may  be  discrimination.  For  ex- 
ample, a  common  carrier  or  innkeeper  may  exclude 
a  person  who  is  dangerous,  or  offensive  to  the  sense 
of  decency  of  others.  Separate  accommodations  may 
be  lawfully  maintained  for  women  and  for  men. 

§  34G.  The  right  to  own  property. — Upon  this 
fundamental  right  belonging  to  every  citizen  depends 
the  security  and  well-being  of  the  community. 
Without  it  the  social  system,  as  now  organized,  could 
not  be  maintained.  Obviously  there  is  nothing  that 
a  private  person  can  do  to  infringe  upon  this  right. 
The  only  question  is  how  far  may  the  state  impose 
valid  limitations  upon  it. 

So  far  as  its  own  creatures  are  concerned,  viz.,  cor- 
porations, it  may,  by  the  creating  act  or  in  pursuance 
of  power  therein  reserved,  make  any  limitations  that 
it  chooses  as  to  the  right  to  own  property  or  may 
withhold  such  right  altogether. 

As  to  individual  citizens,  the  state  lias  no  power 
to  diminish  this  right,  except  only  where,  in  the  exer- 
cise of  what  is  called  the  police  power,  it  does  so  for 
the  public  benefit.  Hence  it  is  valid  for  the  legisla- 
ture to  declare  that  there  may  be  no  ownership  of 


222  ELEMENTARY  LAW.  §  347 

devices  to  be  used  for  gambling  or  other  immoral 
purposes. 

§  347.  The  rig-lit  to  make  contracts. — This,  like 
the  right  to  own  property,  is  a  fundamental  one  and 
the  law  aims  to  protect  it  to  the  fullest  degree  con- 
sistent with  good  order  and  morals.  It  is,  however, 
subject  to  the  power  of  the  state.  The  state  may  by 
general  statutes  adopt  valid  regulations  for  and  even 
prohibit  certain  classes  of  contracts.  By  the  statute 
of  frauds  it  renders  certain  classes  of  contracts  un- 
enforceable. It  may  prohibit  the  employment  of 
infants  in  certain  kinds  of  business;  it  may  deny  the 
power  to  infants  or  married  women  to  make  con- 
tracts; it  may  prohibit  women  from  engaging  in  the 
saloon  business  or  from  being  employed  therein. 
For  such  legislation,  if  constitutional,  there  can  be 
redress.  If  unconstitutional  the  only  redress  is  to 
have  the  statute  so  declared  by  the  court. 

If  individuals  impair  this  right,  the  law  affords 
remedy  by  civil  suit  and  sometimes  by  a  criminal 
prosecution. 

Whoever,  by  any  wrongful  act  prevents  another 
from  engaging  in  business  or  making  contracts  may 
be  held  liable  for  the  wrong  to  the  person  thereby 
injured.  Generally  these  wrongs  are  incidental  to 
an  act  that  is  a  wrong  upon  other  grounds;  as  libel, 
slander,  assault  and  battery,  or  imprisonment;  and 
in  such  cases  the  wrong  will  be  remediable  upon 
such  other  grounds,  the  injury  to  the  right  to  do 
business  or  to  contract  being  considered  by  way  of 
increasing  damages. 

§  348.  The  right  to  labor  and  employ  labor,  and  the 
right  to  engage  in  business. — This  class,  under  the 


§  348  WRONGS  TO  CIVIL  AND  POLITICAL  RIGHTS.     223 

right  to  make  contracts,  is  peculiarly  liable  to  viola- 
tion by  individuals  through  wrongs  that  are  not  reme- 
diable upon  other  independent  grounds,  and  a  sep- 
arate consideration  is  therefore  proper.  As  has  been 
heretofore  stated,  mere  threats  by  one  individ- 
ual against  another  are  not  actionable  civilly.  The 
reason  is,  not  that  the}'  are  not  wrong,  but  that  the 
injury  is  ordinarily  so  inconsiderable  that  the  law 
will  not  concern  itself  with  giving  a  remedy.  That 
threats  are  nevertheless  a  wrong  is  shown  by  the  fact 
that  in  an  assault  and  battery  proof  of  them  may  be 
given  to  show  a  plaintiff  to  have  been  the  aggressor, 
and  thereby  diminish  damages,  and  by  the  fact  that 
where  one  through  threats  has  accomplished  a  pur- 
pose he  could  not  have  otherwise  accomplished,  such 
threats  constitute  a  principal  element  of  the  wrong. 
Threats  may  make  an  act  unlawful  that  without 
them  might  be  innocent.  Whenever  they  are  used 
so  as  to  effect  greater  injury  than  would  occur  when 
they  are  mere  threats  between  man  and  man,  they 
may  become  actionable. 

The  right  to  labor  and. employ  labor,  and  the  right 
to  engage  in  any  business,  is  often  interfered  with, 
through  the  combinations  of  individuals.  This  may 
be  by  strikes,  lockouts  or  other  concerted  action. 
The  question  is,  when  are  such  combinations  lawful 
or  unlawful.  The  purposes  of  such  combination  may 
be  (1)  to  prevent  an  employer  from  hiring  whom  he 
pleases,  (2)  to  prevent  a  laborer  from  hiring  to 
whom  he  pleases,  (3)  to  prevent  a  laborer  from 
working  at  certain  kinds  of  employment,  (4)  to  pre- 
vent a  business  man  from  engaging  in  a  certain  busi- 
ness ;   or   the  purpose   may  be  the  reverse  of   each. 


224  ELEMENTARY  LAW.  §  349 

The  principle  is  the  same  in  all  and  the  law  in  rela- 
tion to  strikes  will  be  illustrative. 

§  349.  Strikes. — Under  the  early  English  decisions 
the  rule  was  that  though  any  one  was  entitled  to  quit 
service  when  he  pleased,  yet  if  two  or  more  agreed 
that  they  would  quit  together  such  agreement  would 
be  a  legal  wrong.  It  was  called  a  criminal  conspiracy. 
Some  of  the  early  American  cases  adopted  these  de- 
cisions as  the  law.  With  the  progress  of  society,  the 
rule  has  been  greatly  modified  and  made  more  liberal 
in  favor  of  those  combining.  It  is  now  the  law  that 
workmen  may  as  a  body  agree  not  to  work  except  on 
certain  conditions,  and  in  pursuance  of  such  agree- 
ment may  quit  service  and  they  will  not  be  guilty  of 
an  unlawful  act,  so  long  as  they  confine  themselves 
to  peaceable  methods.  It  seems,  however,  by  some 
late  federal  decisions,  that  if  the  quitting  necessarily 
involves  the  breach  of  contract,  or  if  the  time  of 
quitting  be  fixed  so  as  to  cause  the  greatest  damage, 
a  combination  to  that  end  may  be  unlawful. 

The  means  used  must  at  all  events  be  peaceable. 
As  soon  as  threats,  menaces  and  intimidation  enter 
into  the  methods  of  the  combination,  there  is  an  ac- 
tionable wrong,  and  all  the  participators  may  be 
subject  to  civil  as  well  as  criminal  liability  for  con- 
spiracy. 

§  350.  The  remedy.— Wherever  it  is  shown  that 
an  unlawful  conspiracy  exists,  a  civil  action  is  main- 
tainable against  the  wrong-doers,  and  the  injuries 
sustained  are  recoverable  as  damages. 

More  effective  and  prompt  remedy,  however,  is  by 
the  writ  of  injunction. 


CHAPTER  XXIX. 


FRAUD. 


§  351.  Kinds  of  fraud. — It  is  every  one's  right  to 
have  others  exercise  good  faith  toward  him  and  to  re- 
frain from  violating  the  trust  and  confidence  that 
he  may  place  in  them.  The  social  fabric  rests  upon 
the  maintenance  of  this  right.  It  is  evidently  im- 
practicable,  however,  for  the  law  to  enforce  perfectly 
honest  and  fair  dealing  under  all  circumstances. 
The  inquiry  must  be,  how  far  does  the  law  take  cog- 
nizance of  or  undertake  to  remedy  violations  ?  This 
is  the  subject  of  frauds  and  deceptions. 

Wrongs  of  this  kind  may  exist  where  the  parties  , 
are  not  upon  terms  of  equality,  and  the  injured  per- 
son is  by  reason  of  some  special  relation  entitled  to 
repose  more  than  usual  confidence  in  the  wrong-doer. 
Or  such  wrongs  may  be  where  the  parties  do  not 
occupy  any  special  relation  toward  each  other.  As  to  - 
both  classes,  the  wrong  may  consist  in  either  affirm- 
ative conduct,  as  where  one  makes  a  false  statement 
misleading  another,  or  in  negative  conduct,  as  where 
one  who  ought  to  speak  is  silent. 

§  352.  Frauds  in  confidential  relations. — Where 
parties  are  upon  any  special  terms  of  relationship 
under  which  one  is  entitled  to  place  peculiar  reliance 
upon  the  other,  the  law  will  closely  scrutinize  trans- 
actions between  them,  and  may  hold  any  violation  of 
15  (225) 


226  ELEMENTARY  LAW.  §  353 

confidence  to  be  a  legal  wrong.  Some  of  these  rela- 
tions will  be  separately  considered.  The  principles 
are  analogous  in  all. 

§  353.  Husband  and  wife. — To  this,  the  most  con- 
fidential of  all  relations,  the  law  gives  a  jealous 
protection.  Communications  between  husband  and 
wife  are  held  sacred,  and  no  matter  how  great  may 
be  the  interests  that  seem  to  demand  it,  the  law  will 
not  compel  a  disclosure.  Nevertheless,  as  between 
themselves,  no  legal  remedy  is  given  for  a  violation 
of  such  confidences.  For  it  is  deemed  better  policy 
to  leave  the  observance  of  confidences  between  hus- 
band and  wife  to  their  own  sense  of  what  is  proper. 
Any  attempt  at  legal  redress  would  probably  cause 
greater  evils  than  it  would  cure. 

So  far  as  concerns  dealings  between  husband  and 
wife  in  relation  to  their  property  interests,  it  is  evi- 
dent that  they  must  always,  to  a  greater  or  less  degree, 
be  affected  by  the  influence  of  the  marriage  relation. 
While  the  law  recognizes  with  approval  a  reasonable 
use  of  such  influence,  no  unfair  use  of  it  will  be 
permitted.  As  a  rule,  the  man  being  the  stronger 
and  more  experienced  in  business  affairs,  there  is  less 
reason  to  suspect  an  undue  controlling  influence  on 
the  part  of  the  wife.  On  the  other  hand,  a  husband 
is  presumed  to  have  a  great  influence  and  control;  so 
that,  in  any  transactions  as  to  the  wife's  property,  the 
law  will  examine  most  closely,  and  if  there  be  found 
any  evidence  whatever  of  unfairness  or  bad  faith, 
relief  will  be  granted. 

§  354.  Parties  engaged  to  marry. — This  relation 
establishes  a  confidence  which,  though  not  of  so  high 
a  degree  as  marriage,  may  be  the  basis  for  accom- 


§355  FRAUD.  oo7 

plishing  a  wrong.     The  confidence  is  such  as  will 
quiet  any  apprehension  of  fraudulent  practices. 

If  a  man,  who  is  incapacitated  to  marry,  as  by 
having  already  a  wife,  or  having  negro  blood,  should 
engage  himself  to  marry  a  woman,  and  should  in- 
duce her  to  consummate  a  supposed  marriage,  he 
would  be  liable  in  damages  to  her.  It  would  not  be 
necessary  to  show  any  active  misstatement  or  decep- 
tion. The  relation  of  confidence  precludes  the  ne- 
cessity of  any  inquiry  by  the  woman.  And  if,  under 
a  promise  of  marriage  which  he  does  not  intend  to 
fulfill,  a  man  accomplishes  the  seduction  of  a  woman, 
damages  are  given  on  account  of  the  breach  of  trust. 

Where  there  is  an  engagement  to  marry,  the  parties 
are  each  entitled  to  take  into  consideration  the  pe- 
cuniary circumstances  of  the  other.  If  one  there- 
upon should  make  a  secret  conveyance  of  property, 
so  that  the  marriage  is  of  less  pecuniary  benefit  to 
the  other,  there  is  a  right  of  action  for  such  fraudu- 
lent practice. 

And  if,  while  under  engagement  to  marry,  one 
should  use  the  relation  of  confidence  for  the  purpose 
of  obtaining  the  other's  property,  the  law  affords  re- 
dress in  an  action  for  damages  or  to  recover  the 
property. 

§  355.  Parties  haying  illegal  sexual  relations. — 
Although  persons  living  in  illegal  sexual  relations 
are  both  in  the  wrong,  and  although  no  contract 
will  be  enforced  which  has  for  its  consideration  such 
relation,  nevertheless  the  law  recognizes  that  there 
is  under  such  circumstances  an  opportunity  for  one 
to  take  undue  advantage  of  the  other,  through  mis- 
use of   confidence    reposed.      Business   transactions 


228  ELEMENTARY  LAW.  §  356 

between  such  persons  are  open  to  suspicion,  and 
unless  the  party  benefited  shows  that  no  advantage 
was  taken,  the  law  will  afford  a  remedy,  either  by 
restoring  to  the  injured  party  what  was  lost,  or  by 
giving  damages. 

§356.  Parent  and  child. — Inasmuch  as  an- in- 
fant's dealings  with  his  property  are  voidable,  a  parent 
can  not  acquire  any  advantage  through  his  influence 
over  the  infant.  The  transaction  would  be  invalid, 
simply  from  want  of  power  in  the  infant.  But  after 
maturity  of  the  child,  there  may  still  be  an  influence 
by  the  parent,  and  if  such  influence  and  relation  of 
confidence  be  used  to  obtain  an  undue  advantage  in 
any  transaction  between  the  parent  and  child,  the 
child  may  have  redress  by  appeal  to  the  courts.  Such 
relation  of  confidence  may  also  exist  in  favor  of  the 
parent  in  old  age,  and  he  will  be  protected  in  a  sim- 
ilar way  against  the  machinations  of  his  mature  off- 
spring. 

§  357.  Trustees. — The  relation  of  trustee  may  be 
created  either  by  the  party  himself,  or  by  some  indi- 
vidual for  his  benefit,  or  by  judicial  action.  Execu- 
tors and  administrators,  guardians,  assignees,  re- 
ceivers, partners,  agents  for  sale  of  property,  and 
the  like,  are  all  trustees  as  much  as  if  they  were  ex- 
pressly so  named.  In  every  case  the  trustee  is  se- 
lected on  account  of  confidence  reposed  in  him  ;  and. 
the  law  requires  of  the  trustee  perfect  good  faith  and 
integrity  in  the  discharge  of  his  obligations.  It  is  an 
elementary  principle  that  a  trustee  is  permitted  to  do 
nothing  whereby  he  personally  reaps  an  advantage  to 
the  detriment  of  his  trust.  Hence,  whenever  he  deals 
with  his  beneficiary,  the  transaction  will  be  deemed 


§  358  FRAUD.  -J29 

fraudulent,  unless  he  shows  that  he  made  full  dis- 
closure of  all  matters  that  he  knew  or  ought  to  know, 
and  that  the  transaction  was  in  fact  a  fair  one.  It 
is  necessary  that  he  shall  have  put  the  beneficiary 
on  terms  of  perfect  equality  with  him.  Whenever  a 
trustee  sells  property  of  the  trust,  or  makes  contracts 
in  relation  thereto,  he  is  not  permitted  either  directly 
or  indirectly  to  make  a  profit  to  himself.  He  can 
not,  either  himself  or  through  a  third  person,  be- 
come the  purchaser  at  his  sale,  without  being  held 
guilty  of  fraud.  The  beneficiary  has  the  option  to 
declare  the  sale  void,  or  to  affirm  it,  if  he  deem  it  to 
his  advantage. 

In  cases  where  the  confidential  relation  is  of  such 
a  character  that  its  influence  can  be  supposed  to  con- 
tinue after  the  relation  has  in  fact  terminated,  subse- 
quent dealings  between  the  parties  may  be  held  to  be 
not  on  equal  terms,  and  for  any  misuse  of  the  influ- 
ence, the  court  may  declare  the  transactions  fraudu- 
lent. 

§358.  Principal  and  agent.  —  The  relation  of 
principal  and  agent  is  one  of  trust.  The  agent  is 
bound  to  the  same  degree  of  fidelity  and  good  faith 
as  any  other  trustee.  There  are,  however,  certain 
additional  obligations  in  this  relation,  owing  to  the 
fact  that  both  principal  and  agent  have  reciprocal 
duties  to  perform,  whereas  the  ordinary  relation  of 
trustee  and  beneficiary  calls  for  performance  of  duties 
by  the  trustee  only.  The  principal  owes  the  duty  to 
the  agent  not  to  lead  him  into  danger  or  loss.  For 
instance,  a  master  is  liable  if  he  subjects  his  servant 
to  unknown  risks  in  machinery  or  buildings,  and  a 
principal  is  liable  if  he  causes  his  agent  innocently  to 


230  ELEMENTARY  LAW.  §  359 

do  a  wrong  to  another  and  thereby  incur  loss.  These 
and  the  like  may  amount  to  frauds  upon  the  servants 
or  agents. 

§  359.  Partners. — Partners  are  in  some  respects 
trustees  for  each  other.  They  can  not  make  profit 
to  themselves  individually  at  the  expense  of  the  part- 
nership, and  are  bound  to  make  full  disclosures  to 
each  other.  In  some  respects  a  partner  acts  as  agent 
for  the  partnership,  and  there  exist  between  him  and 
his  partners  the  reciprocal  duties  of  principal  and 
agent. 

§  360.  Corporations. — Officers  of  corporations  oc- 
cupy the  relation  of  trustees  and  agents  to  both  the 
corporation  itself  and  to  the  individual  stockholders, 
and  they  are  held  to  discharge  their  duties  with  the 
fidelity  and  integrity  required  of  other  trustees  or 
agents.  Wherever  a  fraud  is  committed  by  them, 
the  right  of  action  to  redress  the  same  is  in  the  cor- 
poration, if  the  wrong  affects  the  corporate  body  as 
a  whole,  or  in  individual  stockholders  if  the  wrong- 
is  to  individual  interests.  In  equity  the  suit  for  a 
corporate  wrong  may  be  brought  by  individual  stock- 
holders for  the  benefit  of  all,  if  the  wrong-doers  are 
the  governing  officers  themselves,  or  if  the  govern- 
ing officers  refuse  to  bring  the  suit. 

Among  the  frauds  that  may  be  committed  by  cor- 
porate officers  for  which  the  stockholders  may  have 
redress  are  the  following : 

Where  the  governing  officers  persistently  and 
knowingly  exceed  the  corporate  powers. 

Where  the  officers  refuse  to  furnish  proper  infor- 
mation or  give  false  statements. 


§3G1  FRAUD.  231 

Where  access  to  the  books  of  the  corporation  is 
denied. 

Where  governing  officers  become  purchasers  from 
or  sellers  to  the  corporation,  to  its  detriment. 

Where  the  governing  officers  allow  secret  advan- 
tages to  part  of  the  stockholders  or  themselves,  to 
the  injury  of  other  stockholders,  or  where  they  mis- 
use or  waste  the  assets. 

§  361.  Attorneys,  physicians  and  clergymen. — 
For  the  discharge  of  these  professional  duties  it  is 
necessary  that  there  should  be  a  high  degree  of  con- 
fidence reposed  by  those  who  ask  their  aid.  Without 
such  confidence  it  would  often  be  impossible  to  secure 
any  benefit  from  the  services  required.  The  law 
not  only  favors,  but  protects  to  the  fullest  degree  all 
communications  made  to  secure  such  services.  Xot 
only  does  the  law  refuse  to  compel  the  professional 
man  to  disclose  what  was  told  him  in  confidence,  but 
if  the  confidence  is  violated  by  his  voluntary  dis- 
closure, a  remedy  in  damages  may  be  given  for  the 
injury  done. 

The  confidence  reposed  begets  a  strong  influence 
by  the  professional  adviser.  If  in  any  business 
dealings  between  them  any  undue  advantage  is 
taken,  the  law  will  rectify  the  wrong  by  compelling 
the  wrong-doer  to  make  restitution  or  by  giving  dam- 
ages against  him. 

§  362.  Persons  of  weak  mind. — It  is  not  intended 
here  to  refer  to  persons  so  idiotic  and  mentally  dis- 
eased as  to  be  incapable  of  contracting  or  giving  con- 
sent. Such  persons  are  not  in  any  proper  sense  the 
victims  of  fraud.     Fraud  presupposes  some  intelli- 


232  ELEMENTARY  LAW.  §  3G2 

gence,  enough  at  least  to  be  misled.  The  acts  of 
idiots  are  simply  void. 

There  are,  however,  persons  whose  intellectual 
power,  though  feeble,  is  sufficient  for  carrying  on 
some  of  the  affairs  of  business.  Their  acts  are  not 
void.  The  law  recognizes  that  such  persons  are  not 
upon  terms  of  equality  with  their  fellows,  and  there- 
fore justly  requires  of  every  person  who  deals  with 
them  a  high  degree  of  good  faith.  Acts  that  might 
not  be  held  deceptive  when  practiced  on  a  person  of 
average  intellect  will  be  held  fraudulent  as  to  one 
of  defective  mental  powers.  The  least  undue  ad- 
vantage or  unfairness  taken  by  one  in  his  dealings 
with  the  weakminded,  will  be  laid  hold  of  by  the 
law  as  a  ground  for  giving  redress. 

Persons  intoxicated  fall  into  the  same  category 
with  those  of  feeble  intellect.  Whoever  deals  with 
a  drunken  person  is  held  to  take  upon  himself  the 
burden  of  showing  good  faith.  The  greater  the  de- 
gree of  intoxication,  the  greater  is  the  necessity  for 
exercising  a  scrupulous  good  faith. 

And  to  the  extent  that  their  powers  may  be  inter- 
fered with  by  defects,  the  blind  and  the  deaf  stand 
within  the  protection  of  the  law. 

It  is  to  be  noted  that  the  case  of  persons  of  weak 
powers  differs  slightly  from  the  ordinary  one  of  trust 
in  this  :  In  the  usual  case  of  trust,  the  trustee  is 
specially  chosen,  and  extraordinary  confidence  is 
actually  reposed  in  him  ;  whereas,  in  case  of  persons 
of  weak  powers,  it  often  happens  that  there  was 
really  no  confidence  placed  whatever,  but  in  fact  the 
weaker  one  may  have  been  suspicious,  and  resisting 
so  far  as  was  within  his  power.     The  duty  of  good 


§363  FRAUD.  233 

faith  to  the  weak  is  not  upon  any  special  person,  bul 
upon  any  and  every  person  who  may  chance  to  deal 
with  them.  The  similarity  of  principles  upon  which 
relief  is  granted  makes  it  proper  to  include  this  topic 
under  the  head  of  frauds  in  confidential  relations. 

Under  confidential  relations,  an  active  duty  is  im- 
posed upon  the  one  trusted,  and  it  follows  that  a 
fraud  may  be  as  easily,  and  in  fact  is  most  often, 
committed  by  negative  rather  than  affirmative  con- 
duct. The  law  holds  the  trustee  equally  responsible 
if  he  fails  to  speak  or  act  where  he  should  do  so,  as 
where  he  engages  in  positive  misleading  practices. 
The  person  for  whose  benefit  the  trust  exists  need 
not  usually  exercise  any  care,  but  may  without  in- 
quiry rely  upon  the  trustee. 

§  363.  Fraud  and  deception  between  equals. — As 
has  been  stated,  the  reason  why  so  complete  and  careful 
redress  is  given  for  frauds  done  under  confidential 
relations  is,  that  in  such  relations  the  victim  is  off  his 
guard  and  more  or  less  in  the  power  of  the  wrong- 
doer. Where  no  such  confidential  relation  and 
hence  no  misuse  of  power  exists,  there  is  usually  less 
need  for  the  interposition  of  the  courts.  The  parties 
being  upon  equal  terms  are  able  and  are  expected  to 
use  due  care  in  protecting  themselves.  As  a  general 
rule,  the  law  will  refuse  aid  to  one  whose  pretended 
loss  by  fraud  is  attributable  to  his  own  failure  to  ex- 
ercise ordinary  diligence  and  foresight.  The  ques- 
tion now  is,  what  are  the  frauds  which  the  law  will 
redress,  and  what  is  the  ordinary  diligence  required 
of  every  one  ? 

§  364.  Definition. — Fraud  or  deceit  is  any  trick. 
collusion,  contrivance,  false  representation  or  under- 


234  ELEMENTARY  LAW.  §  365 

hand  practice  used  for  the  injury  of  another.  It 
need  not  be  by  words.  Any  positive  conduct  may 
be  the  equivalent  of  a  verbal  statement  and  be  a  de- 
ception. And  in  some  cases  silence  or  inaction  may 
be  sufficient  to  accomplish  the  fraudulent  purpose. 

§  365.  Fraud  by  silence. — In  transactions  between 
equals,  the  mere  silence  or  inaction  of  one  will  not 
be  regarded  as  a  fraud,  even  though  by  speaking  or 
acting  he  could  have  saved  or  prevented  the  other 
from  error  and  loss.  As  for  instance,  if  one  knows 
there  is  a  valuable  bed  of  ore  upon  another's  land, 
and  without  disclosing  his  knowledge  buys  the  land, 
such  silence  is  no  fraud;  for  every  one  is  supposed 
to  be  entitled  to  the  gains  he  may  make  through  su- 
perior knowledge,  so  long  as  he  does  not  engage  in 
underhand  practices  or  tricks.  If,  however,  the 
silence  occurs  in  connection  with  any  act  or  state- 
ment that  gives  it  point  and  meaning  it  may  amount 
to  a  fraud;  as  for  example,  if  one  stands  by  and 
allows  his  property  to  be  sold  as  the  property  of  an- 
other, or  if  one  is  referred  to  as  knowing  a  statement 
to  be  true,  and  he  remains  silent  in  such  a  way  as  to 
create  the  impression  of  affirmance.  So  if  one  pro- 
fess to  state  all  of  the  facts  and  intentionally  omits 
material  parts,  it  is  a  fraud.  By  universal  accept- 
ance there  are  certain  acts  and  statements  that  pre- 
suppose the  existence  of  certain  other  facts,  for 
instance,  the  giving  of  a  check  upon  a  bank,  even 
though  nothing  be  said,  amounts  to  the  statement 
that  there  are  funds  in  the  bank  for  paying  it,  and 
if  there  are  not,  there  may  be  a  gross  fraud.  While 
a  seller  of  goods  is  not  always  bound  to  inquire  for 
what  purpose  the  goods  are  intended  to  be  used,  yet 


§  366  FRAUD.  235 

if  it  is  apparent  or  the  seller  is  informed  that  the 
goods  are  to  be  used  for  a  specific  purpose,  the  act  of 
selling  them  will  be  equivalent  to  a  statement  that 
they  are  fit  for  the  use  intended.  In  such  cases  it  is 
the  seller's  duty  to  inform  the  buyer  of  defects  not 
open  to  observation  of  the  buyer,  and  silence  may  be 
a  fraud.  An  example  of  this  is  the  sale  to  a  con- 
sumer of  provisions  apparently  sound,  but  known  by 
the  dealer  to  be  wholly  unfit;  the  buyer  is  not  negli- 
gent for  omitting  inquiry  as  to  their  fitness,  and  the 
seller's  silence  on  the  point  amounts  to  a  fraud. 

§  36G.  Equal  opportunities  for  knowledge. — 
Where  one  party  has  equal  opportunities  with  the 
other  for  knowing  or  ascertaining  the  truth,  the  gen- 
eral rule  is  that  he  must  avail  himself  of  his  oppor- 
tunities, or  be  left  remediless,  if  through  his  want 
of  diligence  he  is  deceived.  The  decisions  are  not 
altogether  harmonious,  as  to  what  will  constitute 
equal  opportunities,  and  what  degree  of  diligence 
will  be  required.  It  is  well  settled,  however,  that  if 
one  party  by  any  device  disarms  the  other's  sus- 
picions, and  induces  him  to  refrain  from  making  any 
examination  he  would  otherwise  have  made,  relief 
will  be  given  for  the  fraud.  If  the  subject  as  to 
which  a  representation  is  made  is  not  at  hand,  or  if 
it  be  of  such  a  nature  that  an  examination  is  not 
practicable,  there  will  be  no  want  of  diligence  in  re- 
lying upon  the  representations  made,  but  if  they  are 
false  the  transaction  will  be  fraudulent. 

§  367.  Elements  of  fraud. — In  order  to  make  out 
a  cause  of  action  for  fraud  or  deceit,  the  following 
elements  must  concur  : 


236  ELEMENTARY  LAW.  §  368 

1st.  That  the  defendant  made  a  false  representa- 
tion of  a  material  fact. 

2d.  That  the  defendant  had  knowledge  of  its  falsity. 

3d.  That  the  defendant  intended  it  to  be  acted  upon 
by  plaintiff. 

4th.  That  the  plaintiff,  believing  it  true,  acted 
upon  it  to  his  damage. 

These  elements  will  be  considered  in  detail. 

§  368.  Representations— A  distinction  must  be 
borne  in  mind  between  a  representation  and  a  war- 
ranty. A  warranty  is  part  of  the  contract  itself,  to 
be  enforced  in  the  same  way  that  the  contract  is  en- 
forced. A  representation  is  not  part  of  the  contract, 
but  is  one  of  the  reasons  or  inducements  for  making 
a  contract.  The  breach  of  warranty  is  remedied  by 
an  action  on  the  contract.  A  false  representation  is 
remedied  as  a  tort.  Although  upon  the  same  state 
of  facts  there  may  be  a  warranty,  as  well  as  repre- 
sentation, and  the  party  injured  may  elect  which 
remedy  he  will  pursue,  it  does  not  follow  that  in  all 
cases  of  breach  of  warranty  there  has  been  false  rep- 
resentation. It  is  sometimes  of  great  importance 
whether  the  cause  of  action  is  upon  one  or  the  other. 
Where  the  transaction  in  question  is  upon  writings, 
the  meaning  intended  by  the  parties  must  generally 
be  gathered  from  the  writings,  and  there  will  there- 
fore be  little  difficulty.  Where  the  matter  is  oral, 
however,  the  question  is  more  doubtful,  and  must 
be  left  to  a  jury  to  decide,  in  the  light  of  all  the  sur- 
rounding circumstances. 

§  369.  Clearness  and  certainty. — In  order  to  be  a 
false  representation,  the  words  or  conduct  used  must 
generally  be  clear  and  certain  and  not  of  vague  and 


§  370  fraud.  237 

indefinite  import.  They  must  carry  a  sufficiently 
definite  meaning,  so  that  a  man  of  average  intelli- 
gence would  act  on  them.  Indefinite  and  vague  state- 
ments ought  to  put  an  ordinarily  prudent  person  on 
his  guard  and  upon  inquiry  ;  and  if  put  on  inquiry 
he  can  have  no  cause  of  action,  for  if  he  inquired  he 
must  have  ascertained,  and  if  he  did  not  inquire  his 
negligence  defeats  him. 

§  370.  Matter  of  law. — A  misrepresentation  of  a 
matter  of  law  is  usually  not  in  law  a  fraud,  for  it  is 
supposed  that  all  men's  opportunities  for  knowledge 
in  this  respect  are  equal. 

If,  however,  it  is  clear  that  the  opportunities  are 
not  equal,  there  may  be  a  fraud.  As  for  example, 
if  the  statement  be  made  by  an  attorney  witli  intent 
to  deceive,  or  perhaps  if  made  by  any  one  professing 
familiarity  with  the  law  to  one  who  is  clearly  ig- 
norant. Persons  are  not  supposed  to  have  equal  op- 
portunity to  know  foreign  laws,  and  a  false  state- 
ment in  regard  thereto  may  be  a  fraud. 

§  371 .  Matter  of  opinion. — As  a  rule,  mere  expres- 
sions of  opinion,  even  though  false,  are  not  to  be  re- 
garded as  representations  of  fact,  and  will  not  amount 
to  fraud.  The  question  frequently  arises  upon  state- 
ments as  to  value;  they  will  usually  be  held  to  be 
mere  expressions  of  opinion,  for  each  party  has  an 
equal  right  and  ought  to  form  his  own  opinion.  If, 
however,  one  has  peculiar  means  of  knowledge,  as  an 
expert,  his  false  statement  of  value  may  be  a  fraud. 
And  if  property  is  at  a  distance  and  a  purchaser  is 
induced  to  refrain  from  making  examination,  but  to 
rely  on  the  seller's  false  statement  as  to  value,  it  may 
be  a  fraud.     The  decisions  are  conflicting  upon  this 


238  ELEMENTARY  LAW.  §  372 

subject,  but  it  is  generally  agreed  that  false  state- 
ments of  any  facts  that  enter  into  the  question  of 
value  will  be  a  fraud,  as  for  example,  misrepresenta- 
tion as  to  cost  or  what  the  price  was  on  previous  sale. 

§  372.  Matters  of  fact. — In  order  to  amount  to  a 
fraud  the  false  representation  must  have  been  of 
a  fact,  i.  e.,  something  existent  or  non-existent  in  the 
present  or  past.  Representations  as  to  matters  in 
the  future  are  not  actionable  for  fraud;  for  such 
things  can  not  be  saidto  have  existence.  Statements 
as  to  the  future  can  be  no  more  than  promises,  or 
mere  predictions.  If  they  are  construed  as  prom- 
ises, they  must  be  enforced  as  contracts,  not  reme- 
died as  frauds;  and  if  they  are  predictions  they  are 
merely  opinions,  which  the  law  will  not  recognize  as 
instruments  of  fraud. 

§  373.  Fraudulent  promises. — Although  the  gen- 
eral rule  is  well  established  that  a  promise  unfulfilled 
is  not  a  fraud  nor  the  evidence  of  fraud,  yet  it  must 
be  admitted  that  in  actual  business  affairs  a  promise 
is  often  used  as  the  principal  means  of  committing  a 
deception.  In  recognition  of  this,  some  of  the 
courts,  though  not  all,  have  attempted  to  escape  the 
rigor  of  the  rule.  It  has  in  some  states  been  held 
that,  if  there  is  a  present  fraudulent  intent  not  to 
keep  the  promise,  there  is  a  fraud;  for  example,  if 
one  should  buy  goods  and  promise  to  pay  for  them, 
having  the  secret  intention  not  to  pay  for  them, 
this  would  be  a  false  statement  as  to  a  present  fact, 
namely,  the  intent.  The  decisions  are  not  uniform, 
however.  Many  courts  hold  that  the  law  can  not 
recognize  as  a  fact  the  present  intent  as  to  a  future 
act. 


§  374  FRAUD. 

§  374.  Materiality. — It  is  essential  that  the  mis- 
representation shall  have  been  material,  i.  e.,  it  must 
have  influenced  and  been  a  controlling  reason  fur  the 
transaction.  It  need  not,  however,  have  been  the 
sole  or  even  the  principal  inducement.  Its  materi- 
ality is  made  to  appear  sufficiently,  if  in  the  judg- 
ment of  a  reasonable  person  the  false  statement  was 
one  of  the  reasons  for  acting. 

§  375.  Falsity. — The  representation  must  have 
been  false,  but  it  need  not  have  been  literally  false. 
If  such  words  were  used  as  would  carry  to  an  aver- 
age man  the  false  meaning,  they  would  be  effective 
for  the  fraudulent  purpose.  Indeed  a  fraud  might 
be  accomplished  by  the  use  of  words  true  in  a  literal 
sense,  but  false  in  the  sense  that  would  be  commonly 
given  them. 

§  37G.  Wrong-doer's  knowledge.  —  If  one  inno- 
cently and  upon  reasonable  grounds  makes  a  state- 
ment, he  can  not  be  deemed  guilty  of  a  fraud  even 
though  the  statement  turn  out  to  be  false.  He  must 
have  had  some  knowledge  of  the  falsity.  A  state- 
ment will  be  regarded  as  false  to  defendant's  knowl- 
edge, (1)  if  he  had  actual  knowledge,  (2)  if  he 
recklessly  stated  something  as  true  when  he  had  no 
grounds  one  way  or  the  other,  (3)  if  he  stated  some- 
thing to  be  true  of  his  own  knowledge  when  lie  had 
only  a  belief.  In  each  of  these  cases  the  defendant 
created  in  the  mind  of  the  plaintiff  the  impression 
that  the  defendant  actually  knew  about  the  fact. 
There  is  another  class  in  which  the  defendant 
may  actually  have  had  no  bad  motive  and  yet  be 
deemed  guilty  of  fraud,  namely,  where  he  was  so 
specially  situated   that    he  was   bound  to  know  the 


240  ELEMENTARY  LAW.  §  377 

truth.  Examples  of  the  first  three  classes  will  easily 
suggest  themselves.  An  example  of  the  last  class 
would  be  the  case  of  one  assuming  to  act  as  agent 
with  certain  powers;  it  is  his  duty  to  know  his  au- 
thority, and  he  is  liable  for  any  excesses  even  though 
he  act  under  an  honest  belief  that  he  had  the  au- 
thority. 

§  377.  Wrong-doer's  intent  that  the  representa- 
tion be  acted  on. — It  is  essential,  to  constitute  a  fraud 
in  the  legal  sense,  that  the  representation  shall  have 
been  made  with  the  intent  that  it  should  be  relied, 
and  acted  upon.  This  intent  is  to  be  gathered  from 
the  circumstances  of  the  case.  Where  the  repre- 
sentation is  made  between  the  parties  themselves  in 
a  transaction,  it  is  presumed  that  it  was  intended  to 
be  acted  on,  and  no  further  proof  is  necessary  in  or- 
der to  show  such  intention  than  that  the  defendant 
made  the  misstatement  with  knowledge  of  its  falsity. 
But  when  the  representation  is  made  by  a  third  per- 
son, such  presumption  does  notarise,  and  there  must 
be  some  proof  that  the  person  intended  the  misstate- 
ment to  be  relied  on,  or  knew  or  had  reason  to  know 
it  was  to  be  acted  on. 

§378.  Who  entitled  to  rely  on  representations. — 
It  would  be  obviously  impracticable  to  permit  per- 
sons to  rely  upon  any  and  every  misstatement  they 
may  hear  or  read,  and  to  hold  the  author  responsible 
for  ensuing,  damage.  For,  business  operations  and 
even  social  intercourse  would  involve  such  risk  as  to 
be  unsafe.  The  law  wisely  restricts  the  right  of  action 
for  fraud  to  the  persons  who  were  intended  to  be 
influenced  by  the  misrepresentation.  If  one  who 
was  not  intended  to  be  influenced  nevertheless  acts 


§379  fraud.  241 

and  is  injured  by  a  misrepresentation,  he  is  reme- 
diless. There  are  cases,  however,  where  the  whole 
public  are  intended  to  be  influenced,  as  where  cor- 
porations publish  false  prospectuses.  In  such  cases 
any  individual  of  the  public  who  relies  thereon  and 
is  injured  has  a  right  of  action  against  the  authors 
of  the  misrepresentation. 

§  379.  Representation  must  have  been  acted  on. 
— It  is  self-evident  that  if  the  misrepresentation  is 
not  acted  upon,  any  damage  that  results  can  not  be 
attributed  to  it.  If  it  appears  that  the  party  com- 
plaining did  not  at  all  rely  on  the  misstatement, 
whether  because  he  did  not  believe  it,  or  because  he 
preferred  to  examine  for  himself,  there  is  no  right  of 
action.  If,  however,  the  misrepresentation  formed 
any  material  part,  even  though  slight,  of  the  in- 
ducement for  entering  into  the  transaction,  the  whole 
is  tainted  with  the  fraud  and  remedy  will  be  given. 

§  380.  Injured  party's  belief. — It  is  essential,  in 
order  to  make  out  a  case  of  fraud  to  show  that  the 
injured  person  believed  the  misstatement  to  be  true. 
Of  course,  if  he  knew  it  was  false,  there  is  an  end 
to  the  action.  And  so,  if  by  the  exercise  of  ordi- 
nary diligence  he  could  have  known  the  truth,  he 
can  not  complain  that  he  was  defrauded.  If  he  did 
not  know  and  was  prevented  from  exercising  ordi- 
nary diligence  by  any  devices  or  tricks  of  the  wrong- 
doer, his  belief  in  the  false  statement  would  be 
justifiable. 

As  a  general  rule,  a  person  is  entitled  to  rely  on  a 
statement  when  it  is  made  to  him  for  the  purpose  of 
having  him  rely  on  it,  and  he  is  not  chargeable  with 
16 


242  ELEMENTARY  LAV,'.  §381 

negligence  if  he  does  not  make  examination  for  him- 
self. But  there  are  some  obvious  precautions  that 
every  one  ought  to  take,  as  for  instance,  one  ought 
to  read  an  instrument  before  signing  it,  and  failure 
to  do  so  would  be  such  negligence  as  would  bar  a  re- 
covery for  fraud  unless  the  person  is  for  any  reason 
unable  to  read  or  prevented  by  a  clear  trick  from 
reading.  And  it  is  held  that  if  the  opportunity  for 
verification  is  immediately  at  hand,  it  is  one's  duty 
to  make  examination  rather  than  rely  on  a  state- 
ment. 

§  381.  Damage. — It  is  an  essential  of  the  cause  of 
action  for  a  fraud  that  there  shall  have  been  some 
damage  done  by  acting  on  the  misrepresentation.  It 
is  not  sufficient  that  damage  may  occur  in  the  future, 
it  must  have  occurred. 

§  382.  The  remedies.— The  law  will  redress  a 
fraud,  either  by  way  of  action,  or  by  way  of  defense. 
The  injured  person  may  recover  damages  for  his  in- 
jury, he  may  recover  back  what  he  has  been  de- 
frauded of,  or  he  may  have  injunction  against  the 
wrong-doer's  bringing  an  action,  or  against  his  dis- 
posing of  the  property  fraudulently  obtained.  If  an 
action  has  been  brought  by  the  wrong-doer  upon  the 
fraudulent  transaction,  the  injured  person  may  plead 
the  fraud  as  a  defense.  In  many  cases  of  fraud,  the  law 
remedies  the  wrong  by  way  of  estoppel,  that  is  to  say, 
it  compels  the  wrong-doer  to  abide  by  his  false  state- 
ment, and  will  not  permit  him  to  show  it  to  be  false. 

§  383.  Personal  injuries  through  fraud.— As  has 
been  shown  under  the  head  of  assault  and  battery, 
it  is  usually  a  good  defense  to  show  that  plaintiff  con- 
sented to  the  act ;  but  if  the  consent  was  obtained  by 


§  383  FRAUD. 

fraud,  the  defense  is  overcome.  The  fraud  in  such 
case  is  the  essential  thing'  giving  a  right  of  action. 
If  one  person  knowingly  hands  another  an  explosive, 
and  the  latter,  being  ignorant,  is  without  fault  in- 
jured, the  former  is  guilty  of  a  gross  fraud  ;  the  ac- 
tion, however,  would  be  for  an  assault  and  battery, 
or  for  negligence.  And  so,  where  one  leaves  ex- 
posed anything  that  is  dangerous,  whether  on  his 
own  premises  or  elsewhere,  in  such  a  manner  as  to 
create  an  appearance  of  safety,  and  in  consequence 
injury  occurs  to  innocent  persons,  it  is  clear  that  the 
most  important  element  of  wrong  is  the  deception  ; 
yet  the  action  would  properly  be  considered  as  one 
for  negligence  or  for  nuisance.  Where  fraud  pro- 
duces personal  injury,  there  is  generally  some  other 
ground  than  fraud  upon  which  the  case  may  rest.  It 
is  conceivable,  however,  that  there  might  be  a  case 
in  which  a  malevolent  person  could  by  fraud  alone 
cause  direct  personal  injury,  and  which  would  be  re- 
dressed upon  the  ground  of  fraud  and  deception. 
The  usual  field  for  fraud  is  that  of  property  and  con- 
tracts. 


CHAPTER  XXX. 

NUISANCE. 

§  384.  How  related  to  negligence. — Nuisance  may 
be  described  as  some  use  of  one's  property  or  rights 
that  is  carried  beyond  the  limits  which  a  just  regard 
to  the  welfare  of  others  prescribes. 

Negligence  may  be  described  as  the  failure  to  use 
ordinary  care  in  the  performance  of  some  duty  en- 
joined by  law,  whereby  injury  results. 

Although  the  wrongs  of  nuisance  and  of  negligence 
are  in  their  nature  essentially  different  and  require 
a  separate  consideration,  yet  they  have  certain  points 
of  similarity  and  of  difference  which  it  will  be  in- 
structive to  bring  into  comparison. 

They  are  alike  in  that  they  may  affect  either  the  per- 
son or  property.  They  are  further  alike  in  that  the 
wrong-doer  does  not  primarily  seek  to  destroy  or  take 
away  the  rights  or  property  of  the  injured  one,  but  the 
injury  consists  usually  in  only  an  impairment  of  the 
rights  or  property.  The  injury  done  is  indirect,  that 
is  to  say,  the  injury  done  is  either  not  immediately 
at  the  hands  of  the  wrong-doer,  or  not  within  his 
purposes,  but  generally  occurs  as  the  secondary  ef- 
fect of  some  wrongful  act.  It  is  not  essential  in 
either  that  there  shall  have  been  any  evil  motive  ; 
indeed,  the  legal  wrong  of  nuisance,  or  of  negligence, 

(244) 


§  385  NUISANCE.  245 

may  exist,  although  the  actual  intent  was  praise- 
worthy. 

Among  the  points  in  which  they  differ,  nuisance 
generally  implies  some  duration  of  wrong-doing  ; 
negligence  is  usually  from  single  acts  or  omissions. 
In  nuisance  the  injury  done  may  have  been  inten- 
tional or  unintentional  ;  in  negligence  it  is  essential 
that  the  precise  injury  shall  have  been  unintended. 
In  nuisance  the  question  is  as  to  the  lawfulness  of 
the  act  itself,  in  other  words  whether  there  is  any 
right  to  do  the  act  at  all  ;  in  negligence  the  right  to 
do  the  act  is  not  generally  in  dispute,  but  the  inquiry 
is  as  to  the  manner  of  doing  it. 

The  line  of  demarkation  between  the  principles 
that  control  the  two  classes  of  wrong  is  clear,  yet  the 
wrongs  may  co-exist  under  the  same  state  of  facts, 
and  it  frequently  happens  that  one  is  involved  as  an 
essential  element  of  the  other.  For  example,  a 
properly  constructed  railroad  crossing  in  a  street  is 
not  a  nuisance,  but  if,  through  negligence  in  keeping 
it  in  repair,  it  becomes  an  obstruction,  it  will  be  a 
nuisance. 

§385.  Nuisance  defined. — The  word  means  "an- 
noyance." A  common  definition  is,  "anything 
which  worketh  hurt,  inconvenience  or  damage  to  an- 
other." Whatever  is  injurious  to  health,  or  indecent, 
or  offensive  to  the  senses,  or  an  obstruction  to  the 
free  use  of  property,  so  as  to  essentially  interfere 
with  the  comfortable  enjoyment  of  life  or  property,  is 
a  nuisance.  The  definitions  are  unavoidably  too 
comprehensive.  Many  wrongs  that  seem  to  be  in- 
cluded within  the  bounds  of  the  definition  of  nuisance 
are  clearly  within  other  classes  that  have  been  hereto- 


246  ELEMENTARY  LAW.  §  385 

fore  considered.  An  assault  and  battery  is  injurious  to 
health  and  offensive  to  the  senses;  a  trespass  inter- 
feres with  the  comfortable  enjoyment  of  property  ;  a 
libel  worketh  hurt,  inconvenience  and  damage,  but 
these  are  not  nuisances.  Only  such  wrongs  falling 
within  the  definition  as  do  not  fall  under  other  dis- 
tinct heads  are  to  be  treated  as  nuisances. 

A  thing  may  be  a  nuisance  ( 1 )  causing  personal 
discomfort,  as  by  interfering,  with  one's  quiet,  or 
personal  freedom,  or  affecting  in  an  injurious  way 
the  senses,  nerves  or  health;  (2)  causing  material 
injury  to  property,  as  by  loss  of  trade,  deterioration 
of  values,  complete  or  partial  destruction  of  prop- 
erty. In  determining  whether  or  not  a  given  thing 
is  a  nuisance,  there  will  be  found  to  be  some  differ- 
ence, when  viewed  as  to  its  effect  upon  the  person  or 
upon  property. 

Whether  an  act  causing  mere  personal  discomfort 
is  or  is  not  a  nuisance,  generally  depends  upon  the 
question  whether,  under  the  circumstances,  it  is  rea- 
sonable; for,  it  is  obvious  that  the  carrying  on  of 
daily  business  operations  necessarily  involves  some 
discomfort  to  neighbors.  If  one  resides  in  a  manu- 
facturing district  he  must  be  content  to  endure  more 
annoyance  than  would  be  permissible  in  a  district 
used  for  residence  purposes  only.  The  discomforts 
are  supposed  to  be  outweighed  by  the  advantage  of 
having  business  conducted  in  such  place.  To  be  un- 
lawful, the  act  must  be  one  causing  or  threatening 
some  sensible  physical  annoyance;  if  only  mental 
disquietude  is  involved,  there  will  be  no  nuisance. 
The  annoyance  can  not,  however,  be  allowed  to  ex- 
ceed what  is  reasonable;  whenever  it  does  so  it  will 


§380  nuisance.  247 

be  a  nuisance.  Whether  the  annoyance  does  exceed 
what  is  reasonable  is  not  to  be  determined  by  the 
standard  of  the  people  specially  affected.  It  is  not 
a  question  of  the  notions  of  any  particular  persons, 
whether  they  be  over  fastidious  or  over  stupid.  The 
standard  to  be  taken  is  that  of  average  persons  of  the 
community. 

When  the  question  is  whether  a  thing  is  a  nui- 
sance by  causing  injury  to  property,  the  test  to  be 
generally  applied  is  whether  the  injury  is  visible  or 
sensible.  If  the  injury  is  of  the  visible  character, 
even  though  slight,  the  thing  will  be  a  nuisance, 
and  it  will  be  no  defense  to  show  that  the  business  is 
being  conducted  in  as  reasonable  a  manner  as  possi- 
ble. It  is  unlawful  for  one  to  use  his  property  so  as 
to  injure  his  neighbors. 

§386.  "Coming  to  a  nuisance." — As  has  been 
stated,  the  locality  of  a  business  very  largely  deter- 
mines the  question  as  to  whether  it  is  a  nuisance  or 
not.  What  would  be  a  nuisance  in  a  thickly  popu- 
lated place  may  be  none  at  all  in  a  place  sparsely 
settled,  as,  in  the  outskirts  of  a  town.  There  may, 
however,  be  a  change  in  the  surroundings.  The 
town  by  gradual  and  natural  increase  may  spread  so 
that  the  locality  of  the  business  in  question  becomes 
thickly  populated.  The  question  arises,  what  is  the 
effect  upon  the  business  ?  The  argument  would  be 
that  there  has  been  no  change  in  the  business,  and 
that  the  act  of  strangers  in  coming  to  the  place  ought 
not  to  make  that  a  nuisance  which  was  not  a  nui- 
sance before.  Formerly  this  argument  prevailed  in 
the  courts,  and  it  was  held  there  was  no  right  of 
action.       Now,    however,    the    law    is    settled    the 


248  ELEMENTARY  LAW.  §  387 

other  way.  It  is  uniformly  held  that  the  author  of 
a  nuisance  is  not  protected  by  the  fact  that  he  was 
on  the  ground  first,  and  that  the  injured  person 
"came  to  the  nuisance."  The  reason  for  the  rule  as 
now  established  is  that  the  owner  of  the  vacant  land  is 
also  entitled  to  protection,  and  if  his  vendees  must  take 
subject  to  the  nuisance,  the  value  of  his  land  is  im- 
paired. 

§  387.  The  intent  or  motive  immaterial. — Inas- 
much as  the  test  for  nuisance  is  whether  the  thing 
done  is  lawful  or  unlawful,  it  is  generally  immate- 
rial what  was  the  motive.  If  the  act  be  one  that  it 
is  lawful  to  do,  it  can  not  be  deemed  a  nuisance 
merely  because  it  was  done  from  bad  motives.  For 
example,  every  man  has  a  right  to  keep  surface 
water  on  his  own  land,  and  even  though  his  doing 
so  necessarily  injures  lower  lying  land  that  formerly 
depended  on  it  for  irrigation,  there  can  be  no  action 
for  the  injury.  The  converse  also  holds  good.  If 
the  act  be  one  that  does  in  fact  create  a  nuisance,  it 
is  actionable  even  though  done  with  the  best  motives, 
and  even  though  it  is  highly  beneficial  or  necessary 
to  the  public. 

The  motive  is,  however,  considered  to  some  degree 
where  the  act  in  question  is  one  which  merely  affects 
personal  comfort,  so  that  a  noise  that  is  necessary  to 
a  proper  business  may  be  held  to  be  no  nuisance, 
when  if  the  same  noise  were  wantonly  made  for  the 
express  purpose  of  annoying  it  would  be  a  nuisance. 
And  while  malice  is  not  an  essential  of  the  cause  of 
action  for  nuisance,  it  may  always  be  involved  upon 
the  question  of  exemplary  damages. 

§  388.   Care  or  negligence  in  nuisance. — In  nui- 


§389  NUISANCE.  240 

sance,  the  question  of  care  or  negligence  in  doing 
the  act  is  not  necessarily  involved.  If  the  act  be  of 
such  a  character  that  it  amounts  to  a  nuisance,  it  is 
actionable  even  though  the  highest  degree  of  car!.' 
has  been  exercised.  For  instance,  where  a  factory 
emits  poisonous  gas,  it  is  no  answer  to  show  that  the 
business  can  not  be  otherwise  conducted  and  that  the 
highest  degree  of  care  is  used  to  prevent  the  escape 
of  the  gas.  Where,  however,  the  question  is  of  a 
nuisance  affecting  only  the  physical  comfort,  it  is 
sometimes  of  controlling  importance  whether  due 
care  has  been  exercised.  Care  is  in  such  cases 
involved  in  the  same  way  that  intent  or  motive 
may  be  involved.  For  example,  the  smoke  from  a 
mill  may  be  declared  to  be  a  nuisance  where  it  ap- 
pears that  by  the  exercise  of  ordinary  care  it  could 
be  rendered  almost  inoffensive. 

AY  here  any  state  of  affairs  is  lawful  and  inoffen- 
sive, and  becomes  offensive  only  by  reason  of  its  not 
being  maintained  in  proper  condition,  the  question 
of  care  or  negligence  is  important.  In  such  cases 
the  unlawfulness  of  the  nuisance  would  consist  in 
the  negligence  of  its  origin,  and  if  there  was  no  neg- 
ligence there  would  be  no  liability  for  nuisance.  For 
it  would  be  a  highly  inconvenient  rule  that  would 
hold  a  man  culpable  where  in  spite  of  care  and  dili- 
gence his  property  suddenly  becomes  injurious. 

§389.  What  may  be  nuisances.  —  Reasonable 
noises  are  not  nuisances.  In  order  to  become  unlaw- 
ful, they  must  be  unreasonable  in  their  character,  or  be 
made  at  unreasonable  hours.  The  ringing  of  church 
bells  if  in  the  day-time  has  been  held  to  be  not  a  nui- 
sance, but  if  in  the  night-time  has  been  held  to  be  a 


250  ELEMENTARY  LAW.  §  S8d 

nuisance.  The  noises  of  a  drinking-saloon  were 
held  to  be  a  nuisance  by  day  or  night.  The  blowing 
of  a  trumpet  at  night  or  the  barking  of  a  dog  at 
night  have  been  held  to  be  nuisances. 

Smoke,  dust,  smells  and  noxious  gases,  causing 
sensible  and  physical  discomfort,  are  nuisances. 
It  is  not  necessary  to  show  that  health  is  being  im- 
paired thereby,  the  discomfort  is  sufficient  to  fix  the 
character  of  the  act  as  a  nuisance.  Fumes  from 
burning  old  clothes,  smoke  from  brick  kilns,  dead 
animals  left  unburied,  cattle  yards  and  pig-pens, 
cess-pools,  vaults,  livery  stables,  gas  works,  pools  of 
stagnant  water,  excessive  heat  maintained  to  the  dis- 
comfort of  neighbors,  collecting  crowds  in  the  streets 
by  means  of  exhibitions,  may  be  nuisances. 

Things  dangerous  may  be  nuisances,  even  before 
any  actual  injury  has  occurred,  as  thepesthouse  in  a 
populous  district,  the  keeping  of  explosives  or  in- 
flammable things  in  such  a  way  as  to  be  dangerous, 
fires  negligently  kept,  blasting  rocks,  setting  spring 
guns  and  traps,  whether  on  one's  own  land  or  not, 
provided  they  are  so  placed  as  to  menace  the  safety 
of  other  persons. 

Polluting  the  water  of  springs  or  streams,  so  as 
to  render  it  unfit  for  use  or  offensive  to  the  senses,  is 
a  nuisance.  The  same  is  true  of  underground 
streams  and  percolating  water. 

Interfering  with  the  natural  flow  of  water  in  reg- 
ular channels,  whether  by  unduly  increasing  or  di- 
minishing it,  may  be  a  nuisance.  One  may  not  dam 
up  a  stream  so  as  to  throw  the  water  back  upon  his 
neighbor.  As  to  surface  water,  not  in  regular  chan- 
nels, it  is  generally  the  law  that  one  may  keep   it 


§  390  NUISANCE.  251 

all  upon  his  own  land  if  he  wish,  but  whether  he 
can  cause  overflows  by  building  embankments  on  his 
own  land  to  prevent  the  surface  water  coming  from 
his  neighbor's  land,  is  a  disputed  question.  In 
some  states  it  is  held  to  be  a  nuisance,  in  others  to 
be  lawful 

Obstructing  travel  upon  highways,  whether  streets 
or  waterways,  is  a  nuisance. 

§  390.  Kinds  of  nuisance. — Considered  with  ref- 
erence to  the  persons  affected  by  the  unlawful  act,  a 
nuisance  may  be  cither  : 

1st.    Public  or  common. 

2d.    Private. 

3d.    Both  public  and  private. 

Whether  the  nuisance  be  one  or  the  other  depends 
not  on  the  character  of  the  act,  but  upon  the  cir- 
cumstances under  which  it  is  done  and  the  effect 
produced. 

§  391.  Public  nuisance. — A  public  or  common 
nuisance  is  punishable  by  the  state  and  not  by  civil 
suit  of  individuals.  It  may  be  committed  (1)  upon 
the  public  premises,  or  (2)  upon  private  premises 
in  such  manner  as  to  interfere  with  the  public.  Its 
distinctive  feature  is  that  it  affects  the  community  in 
general,  and  that  individuals  affected  do  not  sustain 
any  peculiar  or  especial  injury. 

An  example  of  nuisance  which  is  public  only 
would  be  an  indecent  exhibition  in  a  public  park. 

§  392.  Private  nuisance. — A  private  nuisance  is 
one  that  affects  certain  individuals  only,  or  certain 
individuals  in  a  peculiar  or  especial  way.  A  purely 
private  nuisance  must  generally  be  committed  or 
maintained  upon  private  premises.     It  is  redressed 


252  ELEMENTARY  LAW.  §  393 

by  civil  suit  of  the  person  injured,  and  not  by  indict- 
ment. An  example  of  purely  private  nuisance  would 
be  the  injury  of  a  neighbor's  shade  trees  by  noxious 
gases  from  a  factory. 

§  393.  Nuisances  both  public  and  private. — The 
unlawful  act  may  be  at  one  and  the  same  time  a 
public  and  a  private  nuisance,  according  as  it  is 
complained  of  by  the  state  or  by  the  individuals  in- 
jured. The  state  may  punish  by  indictment,  and  the 
individual  injured  may  also  recover  in  a  civil  suit. 
Neither  remedy  is  exclusive  of  the  other.  As  an 
example  of  nuisance  having  this  double  character, 
may  be  given  the  pollution  of  a  public  drinking 
place  ;  the  public  would  be  prevented  from  enjoying 
the  water,  and  there  would  be  a  public  nuisance  ;  if 
any  individual  should  inadvertently  drink  of  the 
polluted  water  and  be  thereby  made  sick,  he  would 
have  a  right  of  action  as  for  a  private  nuisance. 

§  394.  Authorized  nuisances. — The  right  to  main- 
tain a  strictly  private  nuisance  may  be  acquired  by 
twenty  years  uninterrupted  continuance  of  the 
nuisance.  No  shorter  time  will  be  sufficient  to  give 
any  rights.  But,  when  the  full  time  has  elapsed, 
the  right  to  maintain  the  nuisance  is  complete,  and 
it  can  not  then  be  lost  by  any  discontinuance  short 
of  twenty  years.  If  the  nuisance  be  public,  no  right 
to  maintain  it  can  be  acquired  by  lapse  of  time,  and 
this  is  true,  even  though  it  be  also  a  private  nui- 
sance. 

What  would  otherwise  be  nuisances  may  sometimes 
be  authorized  and  made  lawful  by  the  act  of  the 
state.  As  to  nuisances  strictly  public,  no  one  has 
the  right  to  complain  except  the  state,  and  the  legis- 


§  395  NUISANCE.  253 

lature  may  surrender  this  right  by  declaring  the  act 
in  question  to  he  lawful  or  hy  commanding  such 
act  to  he  done.  Any  act  done  under  authority  of  an 
act  of  the  legislature  can  not  he  a  public  nuisance. 
In  case  of  private  nuisances  the  power  of  the  legis- 
lature does  not  extend  so  far.  The  legislature  can 
not  make  lawful  any  act  the  effect  of  which  would 
be  to  take  away  or  impair  the  rights  of  property 
without  compensation  therefor.  Subject  to  this  lim- 
itation, it  may,  however,  declare  what  shall  or  shall 
not  be  private  nuisances,  and  the  enactments  will  be 
valid. 

§395.  Obstruction  of  highways.  —  Nuisance  by 
obstructing  and  interfering  with  highways  may  be 
either  public  or  private  in  effect,  or  may  be  both. 
Whether  it  is  punishable  criminally  as  a  public  nui- 
sance is  generally  a  matter  of  statutory  enactment. 
In  so  far  as  the  question  of  private  nuisance  by  ob- 
struction of  highways  is  concerned,  the  well  settled 
rule  is,  that  whoever,  without  special  authority, 
materially  obstructs  a  highway  or  renders  its  use 
hazardous  is  liable  to  one  who  sustains  a  special  in- 
jury thereby.  The  rule  raises  the  following  ques- 
tions, to  be  considered  in  order: 

1.  What  is  a  highway  ? 

2.  What  is  obstructing  or  rendering  hazardous? 

3.  What  is  without  special  authority? 

4.  What  is  special  injury? 

§  396.  What  is  a  highway? — It  is  the  general 
name  for  all  kinds  of  public  ways,  whether  carriage 
ways,  bridle  ways,  foot  ways,  navigable  streams. 
It  also  includes  bridges,  turnpikes,  railroads,  canals 
and  ferries,  but  the  public  rights  in  these  cases  are 


254  ELEMENTARY  LAW.  §  397 

complicated  with  the  rights  of  the  persons  or  corpo- 
rations controlling  the  ways,  so  that  many  other 
principles  are  involved  in  their  obstruction. 

The  public  highways  belong  to  the  public  for  use 
from  side  to  side  and  from  end  to  end.  They 
are  entitled  not  only  to  free  passage  along  the  high- 
way, but  over  any  portion  of  it  not  in  actual  use  of 
some  other  traveler. 

§  397.  Purprestures. — As  already  intimated,  any- 
thing that  prevents  or  interferes  with  the  free  passage 
by  travelers  is  an  obstruction.  If  the  obstruction 
consist  in  enclosing  a  part  or  all  of  the  public  prem- 
ises and  excluding  travelers,  it  is  called  a  purpres- 
ture.  A  purpresture  is  something  more  than  a  mere 
nuisance  in  that  it  involves  not  merely  an  annoyance 
to  the  public,  but  also  a  taking  of  public  property. 
Hence  although  to  constitute  a  mere  nuisance  it  is 
necessary  to  show  that  some  one  or  more  have  suf- 
fered actual  injury  or  annoyance,  the  wrong  of  purpres- 
ture may  be  complete  without  putting  the  public  or  any 
person  to  any  inconvenience  whatever.  All  the  other 
elements  of  a  nuisance  must  be  shown.  Following 
may  be  given  as  examples  of  purpresture:  Fencing 
in  a  part  of  the  highway,  building  a  house  in  the 
street,  constructing  a  stairway  to  overhang  an  alley. 

§  398.  What  is  an  obstruction? — An  obstruction 
need  not  involve  taking  possession  of  the  highway. 
It  is  anything  beyond  a  reasonable  use  of  the  high- 
way for  purpose  of  passage,  that  interferes  with 
travel.  A  railroad  track  in  the  street,  posts  or  rail- 
ings along  sidewalks  may  be  nuisances. 

It  is  not  essential  that  there  shall  be  a  physical 
obstruction  of  the  surface  of   the  highway.     Any- 


§399  NUISANCE.  255 

thing  above  or  below  or  on  the  surface  that  interferes 
with  the  free  use  of  the  surface  may  be  a  nuisance. 
Cornices  overhanging  a  sidewalk  and  bay-windows 
projecting  high  above  the  sidewalk  have  been  held 
to  be  obstructions. 

§  399.  Duration  of  the  obstruction. — The  obstruc- 
tion need  not  be  permanent  in  character  in  order  to 
constitute  a  nuisance.  It  is  sufficient  if  the  highway 
be  used  for  an  improper  purpose  or  for  an  unreason- 
able time.  Placing  logs  in  the  street  over  night, 
blocking  the  way  by  loading  and  unloading  goods, 
if  unreasonably  prolonged  ;  a  temporary  ditch  dug,  or 
a  rope  temporarily  stretched  across  a  street,  using 
the  highway  for  pasturing  cattle,  may  be  nuisances. 

§  400.  Objects  near  the  highway. — The  obstruction 
need  not  be  within  the  bounds  of  the  highway.  If 
the  object  be  so  near  as  to  interfere  with  and  en- 
danger travel,  it  is  an  obstruction.  The  ruinous 
wall  of  a  burned  building,  standing  on  private  prem- 
ises, but  menacing  travelers  on  the  highway,  is  a 
nuisance,  and  the  same  is  true  of  objects  near  a  high- 
way calculated  to  frighten  horses. 

§  401.  Authorized  obstructions. — As  has  been 
shown,  the  state  by  its  legislature  may  legitimate 
what  would  otherwise  be  a  nuisance.  And  so 
the  state  may  for  the  public  benefit  legitimate  ob- 
structions in  highways.  But  even  when  so  author- 
ized by  the  state,  if  the  obstruction  amounts  to  a 
taking  of  private  property,  or  imposing  additional 
servitudes  thereon,  the  property-owner  is  entitled  to 
full  compensation  therefor.  If  the  authority  is 
strictly  followed,  the  obstruction  will  not  be  a  nuisance. 
For  instance,  an  unauthorized  railroad  track  would  be 


256  ELEMENTARY  LAW.  §  402 

a  nuisance  in  a  street.  If  the  track  were  built  properly 
and  under  authority  of  the  statute,  it  would  be  no 
nuisance,  but  the  adjacent  owners  could  recover  for 
the  added  servitude.  If,  instead  of  being  built  prop- 
erly, the  railroad  track  should  contrary  to  authority 
be  constructed  many  feet  higher  than  the  grade  of 
the  street,  it  would  be  a  nuisance.  If  an  individual 
who  has  the  right  to  complain  of  an  obstruction 
sanctions  it,  he  can  not  afterwards  object  to  it.  As, 
if  a  property-owner  consents  to  a  railroad  in  a 
street,  he  can  not  afterwards  have  it  abated  as  a  nui- 
sance, and  sometimes  he  is  precluded  from  recover- 
ing damages  therefor. 

If  an  authorized  obstruction  is  suffered  to  become 
ruinous  or  out  of  repair,  it  may  be  called  a  nuisance, 
but  the  wrong  is  primarily  one  of  negligence. 

§  402.  The  special  injury. — In  order  to  give  a  pri- 
vate right  of  action  on  account  of  an  obstruction, 
there  must  be  an  injury  that  is  special  to  the  indi- 
vidual injured.  If  the  injury  is  the  same  as  is  suf- 
fered by  every  one  of  the  public,  there  can  be  no 
private  right  of  action.  In  order  to  be  special  in 
the  present  sense,  it  is  not  enough  that  the  injury  be 
greater  in  degree  than  that  suffered  by  the  public, 
but  it  must  be  different  in  kind.  So,  for  mere 
delay  in  a  journey,  or  being  compelled  to  take  a 
more  circuitous  route  on  account  of  an  obstruction, 
the  weight  of  authority  is  that  no  action  can  be  main- 
tained. For  any  member  of  the  public  would  suffer 
the  same  inconvenience.  But  if  through  the  delay 
the  traveler  sustains  a  peculiar  loss,  as  the  loss  of 
a  market,  deterioration  of  perishable  goods  and  the 
like,  he  may  recover.   If  one's  access  to  his  property 


§403  NUISANCE.  257 

is  cut  off,  it  is  a  special  injury.  And  so  are  injuries 
to  person  or  property  received  from  collision  with 
the  obstruction. 

§  403.  Remedies  for  nuisance. — Public  or  common 
nuisances  are  redressed  by  acriminal  action,  and  it  is 
often  provided  that  judgment  may  be  given  to  abate 
the  nuisance.  The  remedies  for  private  nuisance  are 
three : 

1st.  Abatement  by  the  act  of  the  person  injured. 
If  he  avails  himself  of  this  summary  remedy  he 
takes  the  risk  of  its  being  a  nuisance,  and  will 
be  liable  for  his  mistake  if  it  is  not,  and  he  is 
hi  mud  to  act  moderately  and  can  not  commit  a 
breach  of  the  peace.  A  private  person  is  not  justi- 
fied in  abating  a  public  nuisance,  unless  it  is  also  a 
private  nuisance  as  to  him. 

2d.  Damages.  The  person  injured  may  recover 
his  actual  damages  from  the  wrong-doer,  and  if  the 
nuisance  be  malicious  or  wanton  he  may  also  recover 
exemplary  damages.  The  remedy  by  action  for  dam- 
ages is  not  barred  by  the  person  having  abated  the 
nuisance  by  his  own  act.  Both  remedies  may  be 
pursued. 

3d.  Injunction.  It  often  happens  that  a  judg- 
ment in  damages  will  be  an  inadequate  remedy,  and 
in  such  cases  a  court  of  equity  will  grant  an  injunc- 
tion against  the  maintenance  of  the  nuisance.  This 
remedy  will  be  given,  however,  only  where  the  in- 
jury is  of  a  serious  and  permanent  character,  and 
will  usually  be  withheld  where  the  nuisance  is  a  busi- 
ness lawfully  conducted,  and  the  complainant  will 
be  left  to  his  action  for  damages. 
17 


258  ELEMENTARY  LAW.  §  404 

§  404.  Evidence  of  nuisance. — Ordinarily  the  bur- 
den is  upon  the  plaintiff  to  show  the  existence  of  the 
nuisance  and  also  what  the  injurious  effect  is.  Some 
things,  however,  are  so  uniformly  and  under  all  cir- 
cumstances offensive  that  the  courts  take  notice 
without  evidence  that  they  are  nuisances.  These 
are  called  nuisances  per  se.  Formerly,  many  things 
were  regarded  as  nuisances  per  se,  as  things  prejudi- 
cial to  public  morals,  disreputable  houses,  saloons, 
things  dangerous  to  life,  powder  magazines,  nitro- 
glycerine works,  and  all  material  obstructions  in 
highways.  The  tendency  of  the  courts  now  is  to  re- 
strict rather  than  extend  the  limits  of  the  phrase 
nuisance  per  se.  And  in  many  states  some  things 
that  were  formerly  nuisances  per  se  are  not  now  so 
considered.  But  wherever  the  restriction  has  taken 
place,  such  nuisances  are  now  regarded  as  prima  facie 
nuisances,  i.  e.,  instead  of  requiring  the  plaintiff  to 
show  that  they  are  injurious,  the  courts  presume 
them  to  be  and  require  the  defendant  to  bear  the 
burden  of  showing  that  they  are  not  injurious. 


CHAPTER  XXXI. 

NEGLIGENCE. 

§  405.  Actionable  negligence. — The  word  negli- 
gence as  commonly  used  covers  all  cases  of  omission 
to  do  that  which  ought  to  be  done,  but  in  the  legal 
sense  the  meaning  must  be  narrowed.  The  law  does 
not  give  a  remedy  for  every  case  of  omission.  It  is 
only  as  to  such  as  the  law  redresses  by  way  of  action 
or  defense  that  the  term  negligence  should  be  ap- 
plied. 

§  406.  Contract  or  tort. — Negligence  may  exist, 
1st,  as  a  pure  tort,  i.  e. ,  a  wrong  not  arising  out  of  con- 
tract;  2d,  as  a  tort  connected  with  a  contract,  but 
which  may  be  treated  as  a  wrong  independent  of 
contract ;  and  3d,  as  a  mere  unintended  breach  of  a 
contract  involving  no  tort.  Cases  of  the  latter  class, 
so  far  as  legal  redress  is  concerned,  will  amount  to 
the  same  as  any  other  breach  of  contract,  and  will 
therefore  be  considered  in  the  chapter  on  contracts. 
In  the  second  class  the  person  injured  usually  has 
the  right  to  choose  whether  he  will  treat  the  wrong 
as  a  mere  breach  of  contract  or  as  a  tort,  and  if  he 
chooses  the  former,  the  principles  of  contract  con- 
trol, if  the  latter  the  principles  of  negligence. 
Under  the  head  of  negligence,  therefore,  will  be 
here  considered  only  wrongs  of   the  first  class,  and 

(259) 


260  ELEMENTARY  LAW.  §  407 

such  wrongs  in  the  second  class  as   are  treated  as 
torts. 

§  407.  Elements  of  actionable  negligence. — In  or- 
der to  constitute  negligence  there  must  be  : 

1.  A  legal  duty  to  use  care. 

2.  A  breach  of  that  duty. 

3.  Absence  of  distinct  intention  to  produce  the 
precise  damage. 

To  make  it  actionable  there  must  be  also  : 

4.  Damage  to  the  plaintiff. 

5.  The  damage  must  be  the  proximate  result. 

§  408.  Definition. — Actionable  negligence  is  the 
inadvertent  failure  of  a  legally  responsible  person  to 
use  ordinary  care  under  the  circumstances  in  observ- 
ing or  performing  a  non-contractual  duty  implied  by 
law,  which  failure  is  the  proximate  cause  of  injury 
to  a  person  to  whom  the  duty  is  due.  The  elements 
of  the  definition  must  be  considered  in  detail. 

§409.  The  inadvertence. — A  conscious  failure  to 
use  ordinary  care  is  a  willful  act,  from  which  the 
law  presumes  an  intent  to  injure.  The  willful  doing 
of  a  wrongful  act  implies  malice.  When  such  a  wrong 
occurs,  the  guilty  person  is  liable  for  all  the  damages 
that  result,  even  for  what  would  be  deemed  too  re- 
mote if  the  act  had  not  been  willful.  Such  a  wrong 
is  not  one  of  negligence.  The  phrase,  "  willful 
negligence,"  though  it  has  been  much  used,  is  by 
the  best  authorities  regarded  to  be  a  contradiction  in 
terms.  It  is  true,  however,  that  many  wrongs  are 
very  close  upon  the  line  dividing  willfulness  and 
negligence,  and  whenever  there  has  been  willful- 
ness the  plaintiff  has  the  option  to  treat  it  as  neg- 
ligence.      He    may    understate    his    case    and    it 


§410  NEGLIGENCE.  261 

would  not  be  for  the  defendant  to  escape  by  showing 
his  act  to  have  been  malicious.  The  uniform  rule  is 
that  in  an  action  for  negligence  there  can  be  no  ma- 
licious intent,  or  willfulness  involved. 

§410.  Inevitable  accident.  —  Inadvertence  does 
not,  however,  mean  that  the  injury  could  not  have 
been  foreseen.  It  is  not  equivalent  to  inevitable 
accident.  The  latter  occurs  when  the  cause  of  the 
injury  is  so  unusual  that  human  foresight  could  not 
have  foreseen  nor  guarded  against  it.  To  be  guilty 
of  negligence,  the  person  must  have  been  in  some 
way  in  fault,  otherwise  the  accident  is  as  to  him  in- 
evitable. For  instance,  unknowingly  carrying  an 
explosive  and  handling  it  on  the  theory  that  it  is 
innocent  would  not  be  negligence  in  the  carrier.  But 
if  inevitable  accident  combine  with  any  negligence 
in  the  person  charged  he  will  be  liable. 

§  411.  Ordinary  care  under  the  circumstances. — 
There  can  be  no  negligence  unless  there  has  been  an 
absence  of  that  degree  of  care  which  a  person  of  or- 
dinary prudence  is  presumed  to  use  under  the  partic- 
ular circumstances  to  avoid  injury.  Such  care  must 
be  in  proportion  to  the  danger  to  be  avoided  and  the 
consequences  involved  in  its  neglect.  What  is  and 
what  is  not  the  requisite  care  must  be  determined 
from  all  the  facts  in  each  case,  and  from  the  nature 
of  the  duty  owing.  The  same  facts  may  at  the  same 
time  amount  to  ordinary  care  as  to  one  person  and  not 
as  to  another.  For  instance,  if  a  land-owner  has  an 
unguarded  pit  on  his  land,  and  two  persons  fall  into 
it,  one  of  whom  is  a  trespasser  and  the  other  an  in- 
vited guest,  as  to  the  former  there  would  be  no  neg- 
ligence, while  as  to  the  latter  there  would  be. 


262  ELEMENTARY  LAW.  §412 

§412.  No  degrees  in  negligence.  —  The  test  is 
always  whether  ordinary  care  under  the  circum- 
stances has  been  exercised.  The  classification  into 
gross,  ordinary  and  slight  negligence  or  care  is 
confusing,  and  is  of  no  substantial  benefit  to  the 
inquiry  in  any  special  case.  It  is  practically  im- 
possible to  draw  a  line  between  the  classes  and  the 
classification,  though  formerly  made  by  the  courts, 
is  now  almost  universally  abandoned.  It  is  true 
the  duty  owing  may  be  greater  in  one  case  than  an- 
other, and  the  same  act  may  be  sufficient  to  discharge 
the  duty  in  one  case  which  would  be  insufficient  in 
another.  Hence,  the  inquiry  must  always  first  be  as 
to  what  is  the  duty  owing.  That  settled,  the  only 
question  is,  was  ordinary  care  exercised  in  the  per- 
formance of  that  duty  ? 

§  413.  Acts  or  omissions. — Negligence  may  con- 
sist in  either  an  act  or  an  omission  to  act.  In  other 
words,  ordinary  care  under  the  circumstances  may 
require  one  to  do  an  act,  or  to  refrain  from  doing  an 
act.  The  question  is,  what  is  the  duty,  positive  or 
negative,  and  whichever  it  is,  has  the  duty  been 
violated  ?  In  a  wider  sense  every  negligence  is  an 
omission,  i.  e.,  a.  failure  to  discharge  a  duty  owing. 
414.  Legally  responsible  person. — If  a  person  is 
wholly  incapable  of  exercising  care  in  its  legal  sense, 
he  can  not  be  held  guilty  of  negligence,  and  upon 
principle  ought  never  to  be  held  liable  in  damages 
for  his  act.  There  is  an  apparent  exception  in  case 
of  infants  and  lunatics,  who,  according  to  the  state- 
ment of  some  writers,  are  liable  for  all  their  torts, 
including  negligence.  In  most  of  the  decided  cases 
the  infant  or  insane  had  capacity  for  some  degree  of 


J415  NEGLIGENCE.  263 

care,  and  should  have  been  held  liable  for  failing  to 
exercise  such  prudence  as  was  possessed.  In  the  re- 
maining cases,  where  the  infant  or  insane  was  wholly 
incapacitated,  the  recovery  of  damages  can  be  sus- 
tained, not  on  the  ground  of  negligence  in  the 
afflicted  one,  but  in  his  parents  or  guardians.  The 
true  rule  is  believed  to  be  that  a  person  incapable  of 
exercising  care  is  not  liable  for  a  failure  to  do  so,  but 
if  there  is  any  capacity  at  all,  he  must  exercise  such 
care  as  he  is  capable  of. 

Consistent  with  the  rule  are  the  cases  of  uncon- 
scious agents,  e.  g.,  persons  who  without  fault  do 
not  and  can  not  know  the  danger,  and  act  with  only 
such  care  as  their  knowledge  dictates.  Persons  un- 
der duress  are  not  free  to  exercise  any  care,  hence 
not  guilty  of  negligence,  but  this  must  be  confined 
to  cases  where  free  will  is  wholly  taken  away.  Per- 
sons acting  under  sudden  alarm  from  any  cause  that 
robs  them  of  possession  of  their  senses  are  not  legally 
responsible. 

§  415.  Intoxication. — Voluntary  intoxication  does 
not  relieve  one  from  exercising  all  the  care  he  should 
have  exercised  if  sober.  His  negligence  begins  with 
his  becoming  intoxicated,  and  he  is  responsible  for 
the  consequences.  Instead  of  being  an  excuse,  in- 
toxication has  been  held  to  be  evidence  tending  to 
prove  negligence. 

§  416.  Physical  infirmity.— Adults  of  sound  mind 
are,  so  far  as  negligence  is  concerned,  presumed  to  be 
equally  capable  of  exercising  ordinary  care.  A  man 
of  dull  mind  is  charged  with  the  same  kind  and  de- 
gree of  care  as  is  a  man  of  brilliant  intellect.  Phys- 
ical infirmities,  however,  must  be  taken  into  consider- 


264  ELEMENTARY  LAW.  §  417 

ation.  No  one  is  bound  for  a  failure  to  exercise  a 
sense  that  he  has  not.  But  he  is  bound  to  make  up 
for  his  defect  as  best  he  can  by  his  other  senses. 
While  it  can  not  be  stated  as  a  rule  that  less  care  is 
required  of  a  woman  than  of  a  man,  it  very  often 
happens,  especially  in  cases  involving  physical  or 
nervous  power,  that  sex  is  of  importance,  in  de- 
termining what  is  ordinary  care  under  the  circum- 
stances. 

§  417.  The  person  to  whom  the  duty  is  owing. — 
In  order  to  constitute  actionable  negligence  there 
must  have  been  a  duty  owing  to  the  party  complain- 
ing. The  fact  that  there  has  been  a  violation  of 
a  duty  owing  to  one  person  does  not  give  another 
person  a  right  of  action  therefor,  even  though  the 
latter  receive  injury.  For  instance,  a  land-owner 
owes  the  duty  to  his  invited  guests  to  guard  them 
against  the  danger  of  a  pit  on  his  land,  but  he  owes 
no  such  duty  to  a  trespasser,  and  will  not  be  liable 
if  the  latter  falls  into  the  pit. 

§  418.  The  duty. — Of  course,  if  the  act  in  ques- 
tion does  not  violate  any  duty,  there  can  be  no  ac- 
tion. For  example,  a  traveler  on  a  highway,  for  his 
own  convenience  makes  a  temporary  bridge  over  a 
ditch ;  he  owes  no  duty  to  any  one  to  build  the 
bridge  in  any  particular  way,  or  to  build  it  at  all. 
Hence  he  is  not  liable  to  another  traveler  who  after- 
wards tries  to  cross  and  is  irjured. 

§  419.  The  duty  implied  by  law. — In  order  to  be 
actionable  as  negligence,  the  duty  that  is  violated 
must  be  one  implied  by  law,  independent  of  con- 
tract. Though  there  may  be  a  contract  involved, 
yet  the  wrong  done  must  be  so  far  separable  from 


§  420  NEGLIGENCE.  265 

the  contract  as  to  give  an  independent  right  of  ac- 
tion. For  example,  a  man  makes  a  contract  with  a 
railroad  company  to  cany  him  and  his  servant. 
There  is  no  contract  with  the  servant.  But  there  is 
the  duty  implied  by  law  from  the  relation  of  passen- 
ger and  carrier.  For  any  injury  the  servant  may 
recover,  because  this  duty  implied  by  law  has  been 
violated.  And  the  master,  if  injured,  may  recover 
damages  on  the  same  ground.  Though  there  was  a 
contract  with  the  master,  there  was  also  the  duty 
implied  by  law  from  the  relation  of  passenger  and 
carrier.  Hence  the  master  could  recover  for  the 
negligence  as  a  tort,  or  he  could  recover  for  the 
breach  of  contract. 

§  420.  The  damage. — Unless  some  substantial  in- 
jury was  done  there  can  be  no  action  for  negligence. 
Damage  is  an  essential  element;  and  it  is  obvious 
that  the  damage  must  have  been  to  the  plaintiff  spe- 
cially. If  from  any  careless  act  the  plaintiff  is  in- 
jured only  in  the  same  kind  and  degree  as  the  whole 
public  there  will  be  no  cause  of  action. 

§  421.  Cause  and  effect. — The  connection  of  cause 
and  effect  between  the  breach  of  duty  and  the  injury 
must  be  established,  otherwise  the  negligence  is  not 
actionable.  It  must  be  shown  that  but  for  the  breach 
of  duty  the  injury  would  not  have  happened.  But 
while  this  is  necessary  to  be  shown,  it  is  not  enough. 
The  plaintiff  must  go  further  and  show  that  the 
breach  of  duty  was  an  efficient  cause.  For  example, 
if  a  passenger  carrier  is  guilty  of  delay  so  that  he 
arrives  at  a  place  on  the  road  where  a  sudden  storm 
injures  the  passenger,  it  might  be  evident  that  the 
injury  would  not  have  happened  but  for  the  negli- 


266  ELEMENTARY  LAW.  §  422 

gent  delay;  and  yet  it  is  also  clear  that  such  an  injury 
might  equally  well  happen  where  the  carrier  is  unusu- 
ally diligent.  The  storm  and  not  the  carrier's  delay 
is  the  efficient  cause  of  the  injury.  It  is  a  uniform 
rule,  however,  that  if  the  defendant's  act  was  an 
efficient  cause,  he  is  not  relieved  by  the  concurrence 
of  other  causes,  whether  they  be  called  the  negligence 
of  others,  inevitable  accident,  or  the  act  of  God. 

§  422.  The  legal  connection. — Difficulty  lies  not 
only  in  tracing  a  causal  connection,  but  also  in 
determining  whether  the  connection  is  sufficiently 
close  to  be  cognizable  by  the  law.  Theoretically 
there  is  no  end  to  the  effect  of  an  act,  and  no  cause 
back  of  which  another  cause  may  not  be  found.  The 
law,  however,  is  practical  and  draws  lines  beyond 
which  the  search  for  cause  or  effect  shall  not  be  pros- 
ecuted. It  requires  that  the  act  shall  be  shown  to 
be  the  proximate,  not  the  remote  cause  of  the  injury. 

§  423.  Definition  of  proximate  cause. — Proximate 
cause  is  that  which  in  a  natural  and  continuous  se- 
quence, unbroken  by  any  new  cause,  produces  the 
event  and  without  which  the  event  would  not  have 
occurred. 

A  remote  cause  is  one  which  has  so  far  expended 
itself  that  its  influence  in  producing  the  injury  is  too 
minute  for  the  law's  notice;  or  a  cause  which  some 
independent  force  merely  took  advantage  of  to  ac- 
complish something  not  the  probable  or  natural 
effect  thereof. 

§  424.  Plaintiff's  own  conduct. — In  the  search  for 
the  causes  of  an  injury,  it  usually  happens  that  some 
conduct  of  the  person  injured  must  be  considered  as 


§  425  NEGLIGENCE.  267 

an  agency.  The  question  arises,  how  far  does  this 
affect  the  liability  of  others? 

It  is  obvious  there  is  but  one  way  in  which 
plaintiff's  conduct  can  have  any  effect  in  relieving 
other  causes  of  injury,  and  that  is  by  being  itself  a 
cause.  In  determining  whether  it  is  or  is  not  a 
cause,  the  plaintiff's  conduct  is  to  be  considered  and 
weighed  as  a  fact,  in  the  same  way  with  all  the  other 
facts  in  the  case.  And  the  same  rules  governing 
causal  connect  inn  apply.  If  no  relation  of  cause  and 
effect  can  be  shown  between  plaintiff's  conduct  and 
the  injury,  the  right  of  action  against  others  is  un- 
affected, it  matters  not  what  may  be  plaintiff's  fault 
or  innocence  in  such  conduct. 

If,  on  the  other  hand,  plaintiff's  conduct,  whether 
wrongful  or  not,  is  shown  to  be  an  ellicient  and 
superseding  cause,  it  will  be  deemed  the  sole  cause. 
Between  these  two  are  the  cases  in  which  plaintiff's 
conduct  is  an  efficient,  but  not  a  superseding  cause, 
and  these  embrace  the  subject  of  plaintiff's  contrib- 
utory fault.  It  should  be  noted  at  the  outset  that  no 
question  can  arise  as  to  plaintiff's  fault,  except  upon 
the  assumption  that  there  has  been  fault  in  the  de- 
fendant ;  for  if  the  defendant  is  innocent,  the  case  is 
at  an  end. 

It  is  a  general  rule,  founded  on  the  maxim,  "  no 
man  shall  take  advantage  of  his  own  wrong,"  that 
if  one  is  injured  by  the  negligence  of  another,  he 
can  not  recover  damages  unless  he  is  himself  free 
from  fault  proximately  contributing  to  the  injury. 
This  fault  in  plaintiff  may  consist  (1st)  in  an  act  un- 
lawful in  itself,  (2d)  in  negligence  only. 

§  425.   Plaintiff's  unlawful  act. — If  an  unlawful 


268  ELEMENTARY  LAW.  §  426 

act  of  the  plaintiff  be  an  efficient  proximate  cause  of 
the  injury  to  him,  he  can  not  recover  against  an- 
other person  whose  negligent  act  was  also  an  efficient 
cause.  For  example,  if  two  thieves  break  into  a 
house  with  drawn  pistols,  and  one  by  negligence 
shoot  the  other,  no  action  could  be  maintained.  It 
is  essential,"  however,  that  the  plaintiff's  unlawful 
act  be  proximate  in  causation  ;  for  if  the  unlawful 
act  amount  only  to  a  condition  or  remote  cause,  it 
will  not  bar  his  action.  For  instance,  though  trav- 
eling on  Sunday  be  made  unlawful  by  statute,  it 
would  not  bar  an  action  against  one  who  should  neg- 
ligently frighten  plaintiff's  horse  on  Sunday.  For 
it  is  not  a  natural  sequence  of  Sunday  travel  that 
such  injury  should  happen. 

§426.  Contributory  negligence.  —  The  common 
law  rule  was  that  there  could  be  no  recovery  for 
negligence  of  another  if  the  injured  person  by 
his  negligence  proximately  contributed  to  the  injury. 
This  rule  has  been  adopted  as  the  law  in  the  federal 
courts  and  in  the  courts  of  nearly  all  of  the  states. 
Modifications  exist  in  Illinois,  Georgia,  Kansas  and 
Tennessee,  under  which  there  may  be  a  recovery  if 
the  defendant  was  grossly  negligent  and  the  plaintiff 
negligent  only  to  a  slight  degree.  Wherever  the  com- 
mon law  rule  prevails  any  negligence  of  the  plaintiff 
that  proximately  contributes  as  a  cause  of  the  injury 
will  defeat  a  recovery.  In  some  states  plaintiff's 
negligence  is  for  the  defense  to  prove,  in  others  the 
plaintiff  must  show  its  absence. 

§  427.  Tests  of  contributory  negligence. — In  as- 
certaining whether  negligence  exists,  the  plaintiff's 
conduct  must  be  viewed   in  the    light  of  all  other 


§428  NEGLIGENCE.  2G9 

facts  in  the  case,  and  in  general  is  subject  to  the 
same  tests  as  is  the  defendant's  conduct.  There 
must  have  been  a  failure  by  plaintiff  to  use  ordinary 
care,  or  the  accident  is,  so  far  as  his  responsibility 
goes,  inevitable.  There  must  have  been  a  want  of 
such  ordinary  care  as  was  required  under  the  partic- 
ular circumstances.  The  classification  into  slight, 
ordinary  and  gross  is  generally  abandoned  here,  as 
it  is  where  defendant's  negligence  is  the  question. 
The  kind  and  degree  of  care  depends  on  the  facts  in 
each  case.  The  plaintiff's  negligence  may  have  been 
an  act  or  omission.  Subject  to  the  exceptions  made 
under  the  doctrine  of  imputable  negligence,  which 
will  be  hereafter  considered,  the  plaintiff  must  have 
been  legally  responsible  for  his  conduct.  Voluntary 
intoxication  does  not  relieve  the  plaintiff  from  exer- 
cising all  the  care  he  should  have  exercised  if  sober. 
Physical  infirmities  are  taken  into  account,  and 
while  plaintiff  is  not  expected  to  use  powers  that  he 
does  not  possess,  he  is  bound  so  far  as  possible  to 
make  up  for  defective  powers  by  the  use  of  those 
he  has,  and  it  is  essential  that  the  plaintiff's  conduct 
be  a  proximate  cause  of  the  injury. 

§  428.  Plaintiff's  knowledge  of  danger. — The  fact 
that  plaintiff  knew  there  was  danger  is  not  conclu- 
sive that  he  was  guilty  of  contributory  negligence. 
A  man  may  be  fully  conscious  of  danger,  and  yet  be 
in  the  exercise  of  ordinary  care  under  the  circum- 
stances. Some  risks  must  always  be  taken;  the 
question  is,  what  risks  will  a  prudent  man  take? 

§  420.  Danger  incurred  to  save  life  or  in  dis- 
charge of  duty. — One  who  is  saving  the  life  of  an- 
other in  peril  from  the  defendant's  negligence  is  not 


270  ELEMENTARY  LAW.  §  430 

guilty  of  contributory  negligence,  unless  the  attempt 
to  save  is  so  rash  as  to  be  practically  certain  to  result 
in  injury,  or,  as  is  sometimes  held,  unless  the  person 
to  be  saved  was  himself  in  the  wrong.  A  son  who 
tried  to  save  the  life  of  his  father,  who  was  negli- 
gently on  a  railroad  track,  was  not  allowed  to  recover 
against  the  railroad  company  for  its  negligence. 

One  charged  with  the  duty  of  caring  for  others  is 
not  guilty  of  contributory  negligence  even  though 
he  discharge  that  duty  in  the  face  of  certain  danger, 
provided,  of  course,  that  he  could  not  have  done  his 
duty  in  any  safer  way.  But  a  person  so  injured  must 
himself  have  been  free  from  any  fault  in  creating 
the  danger.  So,  an  engineer  who  stays  at  his  post  to 
save  passengers  from  a  collision  is  not  to  be  deemed 
guilty  of  contributory  negligence,  unless,  for  in- 
stance, he  violated  orders  in  starting  and  thereby 
brought  on  the  collision. 

§  430.  Persons  of  defective  powers. — As  has  been 
shown,  persons  of  defective  powers  are  not  guilty  of 
negligence  for  failing  to  exercise  more  care  than  they 
are  capable  of  exercising.  This  is  equally  true  where 
the  question  is  upon  contributory  negligence  of  such 
persons.  It  naturally  follows  that  a  correspondingly 
higher  degree  of  care  is  required  from  all  who  deal 
with  such  persons.  An  act  that  would  be  ordinarily 
careful,  if  done  toward  a  grown  person,  might  be 
negligent  if  done  toward  a  child.  It  is  always  pre- 
supposed, however,  that  the  defective  condition  of 
the  person  was  or  ought  to  have  been  known.  So 
that,  an  engineer  would  not  be  negligent  for  expect- 
ing a  man  to  step  off  the  track  when  he  sounded  the 


§431  NEGLIGENCE.  271 

whistle,  without  checking  speed,  whereas,  if  lie  had 
notice  that  the  man  was  deaf,  it  would  be  negligence. 

§431.  Misleading  conduct. — A  plaintiff  is  not 
chargeable  with  contributory  negligence,  whose  er- 
roneous act  was  caused  or  induced  by  the  misleading 
conduct  of  the  defendant.  If  he  has  a  right  to  rely 
and  does  rely  upon  defendant's  verbal  directions  or 
conduct,  assuring  him  of  safety,  he  is  blameless,  pro- 
vided the  danger  is  not  obvious ;  and  where  by  the 
defendant's  negligence  a  sudden  danger  confronts 
the  plaintiff,  he  is  not  in  fault  if  in  the  haste  and 
alarm  he  does  not  choose  the  safest  course,  or  even 
if  he  chooses  the  only  dangerous  course. 

§  432.  Imputable  negligence. — The  principle  on 
which  the  doctrine  of  imputable  negligence  rests 
is  that  the  innocent  person  and  the  guilty  per- 
son are  identified  as  in  a  joint  enterprise,  by 
agency  or  by  having  the  right  to  control.  The  case 
of  saver  and  saved  has  been  alluded  to;  the  negli- 
gence of  the  one  saved  being  imputed  to  the  saver.  The 
negligence  of  a  servant  is  imputed  to  the  master,  for 
he  has  the  right  to  control.  Partners,  whose  goods  are 
injured  by  negligence  of  another,  can  not  recover  if 
the  negligence  of  one  partner  contributed,  for  his 
negligence  is  imputable  to  all.  The  cases  of  carrier 
and  passenger,  and  of  children,  require  a  few  words 
more. 

§  433.  Passenger  and  carrier — Imputed  negli- 
gence.— The  old  English  rule,  established  by  the 
case  of  Thorogood  v.  Bryan,  was  that  in  an  action 
by  a  passenger  against  a  third  person  for  a  negligent 
injury,  the  contributory  negligence  of  the  carrier 
will  be  imputed  to  the  passenger.     It  was  assumed 


272  ELEMENTARY  LAW.  §  434 

that  a  carrier  is  a  passenger's  servant  in  all  cases.  The 
rule  has  been  overthrown  in  England,  and  is  not  in 
force  in  the  United  States  courts,  nor  in  most  of  the 
states. 

§  434.  Children — Imputed  negligence. — The  ques- 
tion is  only  concerning  children  too  young  to  be 
capable  of  exercising  any  care  whatever  ;  for  if  they 
have  any  capacity  at  all  they  will  be  negligent  for 
failing  to  exercise  it,  and  at  the  same  time  will  be 
responsible  only  for  their  own  negligence.  Whether 
the  negligence  of  parents  or  custodians  shall  be  im- 
puted to  children  who  are  themselves  incapable  of 
exercising  care  and  hence  incapable  of  negligence,  is 
a  question  upon  which  the  authorities  are  divided. 
The  better  reason  is  against  imputing  negligence  in 
such  case. 

§  435.  Presumptions  as  to  negligence. — As  a  rule 
negligence  is  not  presumed,  but  must  be  proven.  The 
mere  fact  that  some  one  has  been  injured  does  not 
usually  make  it  probable  that  any  particular  person 
has  been  negligent.  But  the  circumstances  under 
which  an  injury  occurred  may  be  such  as  to  create 
a  presumption  of  negligence,  and  throw  the  burden 
upon  a  certain  person  to  prove  himself  without  fault. 
If,  judged  by  common  human  experience,  a  fact 
could  not  exist  except  by  some  negligence,  the 
court  will,  in  the  absence  of  other  evidence,  de- 
clare that  there  was  negligence.  For  instance, 
if  a  passenger  is  thrown  down  by  the  jerk  of  a  street 
car,  the  presumption  is  that  the  jerk  was  by  neg- 
ligence of  the  street  car  company  ;  if  a  boiler  on 
a  vessel  explodes,  it  is  presumed  to  have  exploded  by 
negligence  of  those  in  control.    The  presumption  can 


§435  NEGLIGENCE.  273 

always  bo  overcome  by  the  defendant  showing  that 
in  fact  he  exercised  ordinary  care  under  the  circum- 
stances. 

Whether  the  presumption  shall  be  made  depends 
somewhat  upon  the  nature  of  the  duty  owing  and  the 
degree  of  care  required  in  its  discharge.  Where  there 
is  an  obligation  for  especial  care,  the  presumption  of 
negligence  will  be  made,  when  it  would  not  under 
ordinary  circumstances.  For  example,  if  a  railroad 
train  runs  off  the  track  and  injures  a  passenger  and 
a  bystander,  as  to  the  passenger  the  presumption  of 
negligence  in  the  railroad  company  would  arise,  but 
not  as  to  the  bystander. 


18 


CHAPTER  XXXII. 

ANIMALS. 

§  436.  Injuries  by  animals. — The  subject  of  in- 
jury by  animals  is  in  some  respects  peculiar,  partak- 
ing as  it  does  of  the  nature  both  of  nuisance  and 
negligence.  In  this  place,  injuries  caused  by  the 
Voluntary  act  or  purpose  of  the  owner  of  the  ani- 
mals, will  not  be  considered,  for  such  injuries  would 
usually  be  deemed  an  assault  and  battery  by  the 
owner  himself. 

In  considering  the  law,  a  distinction  must  be  kept 
in  mind  from  the  outset,  between  acts  that  are  a 
trespass  on  land  and  acts  that  are  not. 

§  437.  Trespass  upon  land  by  animals. — Every 
unwarrantable  entry  by  one's  animals  upon  the  land 
of  another  is  a  trespass,  whether  the  land  be  en- 
closed or  not.  If  any  part  of  the  animal  cross  the 
line  the  trespass  is  complete. 

§  438.  Duty  of  owner  at  common  law. — At  com- 
mon law  every  owner  of  animals  was  bound  at  his 
peril  to  keep  his  animals  from  straying  upon  an- 
other's land.  The  duty  was  absolute,  and  was  not 
discharged  by  the  exercise  of  the  highest  degree  of 
care.  Hence,  no  question  of  negligence  was  in- 
volved. The  absolute  obligation  attached,  however, 
only  as  to  such  animals  as,  from  their  nature,  were 
capable  of  damaging  land  or  crops.     And  an  excep- 

(274) 


§439  ANIMALS.  275 

tion  was  made  in  favor  of  the  owners  driving  cattle 
along  a  highway,  and  in  such  cases  the  liability  was 
not  absolute,  but  the  owner  was  relieved  if  he  exer- 
cised ordinary  care  to  prevent  the  trespass. 

§  439.  The  law  in  the  United  States.— The  com- 
mon law  rule  of  absolute  liability  for  injuries  done 
by  trespassing  animals  is  generally  in  force  in  the 
United  States.  In  some  the  wrong  is  not  treated  as 
negligence;  in  others  it  is  called  negligence,  but  the 
negligence  is  conclusively  presumed  from  the  fact  of 
trespass.  Statutes  in  the  various  states  have  modi- 
fied the  English  rule  to  some  extent  by  requiring 
land-owners  to  maintain  sufficient  fences. 

§  440.  Remedies. — In  addition  to  the  usual  rem- 
edy by  an  action  for  damages,  the  land-owner  was 
entitled  to  take  possession  of  the  trespassing  animal 
and  keep  it  until  the  damage  was  paid.  Or  he  could 
drive  the  animal  from  his  premises  to  the  highway, 
using  no  more  force  than  needful.  For  any  excess 
he  would  in  turn  become  liable  himself. 

§  441.  Animals  not  trespassing. — It  was  formerly 
held  at  common  law  that  the  owner  of  a  wild  beast, 
or  a  domestic  animal  known  to  be  dangerous,  was 
bound  at  his  peril  to  keep  it  confined,  and  that  it 
would  be  no  defense  that  the  owner  exercised  care  to 
prevent  injury.  The  dangerous  animal  was  deemed 
a  nuisance  and  the  keeping  it  was  an   unlawful  act. 

The  present  rule  is  that  for  injuries  done  by  an 
animal,  other  than  by  trespass,  the  owner  is  not  ab- 
solutely liable,  but  liable  only  for  a  failure  to  use 
ordinary  care.  Whether  the  animal  be  dangerous 
or  tame,  the  owner  is  liable  only  for  negligence. 
The  care  required  must,  of  course,  be  proportioned 


276  ELEMENTARY  LAW.  §  442 

to  the  danger  to  be  apprehended.  In  order  to  charge 
an  owner  or  keeper  for  injuries  by  animals,  it  is  nec- 
essary to  show  that  he  had  knowledge  of  the  dangerous 
propensity  and  failed  to  take  proper  precautions. 

§  442.  Owner's  knowledge  of  danger. — Distinc- 
tion is  made,  so  far  as  the  evidence  of  negligence  in 
the  owner  is  concerned,  between  (1)  animals  natu- 
rally vicious  and  ( 2 )  tame  animals  that  have  become 
vicious. 

As  to  naturally  wild  and  vicious  animals,  the  pre- 
sumption is  conclusive  that  the  owner  knew  them  to 
be  dangerous. 

As  to  animals  that  have  broken  through  the  tame- 
ness  of  their  nature  and  become  vicious,  there  is  no 
presumption  that  the  owner  knew  of  the  dangerous 
propensity,  but  proof  of  a  single  breach  brought 
home  to  the  owner's  notice  is  sufficient.  Thencefor- 
ward they  are  to  be  treated  the  same  as  naturally 
wild  animals. 

As  to  tame  domestic  animals,  the  owner  is  bound 
only  for  a  negligent  failure  to  keep  them  confined, 
and  then  only  for  such  injuries  as  from  their  nature 
they  are  likely  to  commit. 


CHAPTER  XXXIII. 


HUSBAND    AND    WIFE. 


§  443.  Right  to  marry. — A  refusal  to  perform  a 
promise  of  marriage  is  only  a  breach  of  contract,  the 
remedy  for  which  is  in  general  the  same  as  for  breach 
of  any  other  contract.  It  sometimes  happens  that  a 
fraud  becomes  mingled  in  the  making  or  breaking 
of  the  promise,  and  in  such  case  the  whole  becomes 
a  tort.  For  example,  if  a  man  of  negro  blood,  pre- 
tending to  be  white,  should  induce  a  white  woman 
to  enter  into  an  engagement  for  marriage  with  him, 
such  marriage  being  illegal,  there  would  be  a  wrong 
whether  the  marriage  ceremony  were  performed  or 
not.  The  same  would  be  true  if  one  of  the  parties 
were  already  married. 

If  third  persons  wrongfully  interfere  with  mutual 
promises  of  marriage  and  break  the  engagement  an 
action  lies  in  favor  of  the  one  injured.  But,  gener- 
ally, such  a  wrong  will  be  one  that  is  actionable 
upon  some  other  ground. 

§  444.  Marriage. — Under  this  head  there  are  to 
be  considered,  first,  the  formation  of  the  relation  ; 
second,  the  rights,  duties  and  liabilities  that  arise 
out  of  marriage,  and  third,  its  dissolution. 

Marriage  is  defined  to  be  the  lawful  union  of  one 
man  with  one  woman,  to  the  exclusion  of  all  others,  by 
a  bond  that  can  not  be  dissolved  by  the  act  of  either 
.(277) 


278  ELEMENTARY  LAW.  §445 

or  both,  and  can  only  be  dissolved  b}r  the  authority 
of  the  state.  If  the  union  be  made  as  a  temporary 
arrangement,  to  be  ended  at  the  pleasure  of  either 
party,  it  is  not  a  marriage. 

§  445.  Illegal  marriage. — In  order  to  be  a  valid 
marriage,  the  union  must  be  lawful.  Some  persons 
are  by  law  incompetent  to  marry  and  marriage  be- 
tween certain  classes  is  prohibited.  The  subject  is 
controlled  by  statute  of  the  various  states,  and  the 
legislation  has  not  been  harmonious.  Some  of  the 
principal  grounds  upon  which  marriages  are  pro- 
hibited will  be  stated. 

The  marriage  of  near  relations  is  forbidden,  the 
degrees  varying  in  the  several  states.  Marriage  be- 
tween a  black  and  a  white  person  is  in  many  states 
void,  in  some  others  is  punishable  criminally.  If 
either  party  is  physically  incapable  of  marriage,  it 
is  null  and  void.  If  either  party  have  a  wife  or  hus- 
band living,  the  second  marriage  is  void.  A  mar- 
riage procured  by  force  or  fraud  is  voidable  at  the 
option  of  the  party  wronged. 

§  446.  Marriage  ceremony. — The  law  contemplates 
that  the  marriage  ceremony  shall  be  attended  with 
some  degree  of  publicity.  Usually,  only  a  judicial 
officer  or  minister  of  the  gospel  is  by  law  allowed  to 
solemnize  marriage.  A  license  by  the  state  must 
usually  be  obtained.  Violation  of  such  provisions 
does  not  generally  invalidate  the  marriage.  Any 
marriage  may  be  valid,  if  the  parties  in  the  presence 
of  witnesses  declare  that  they  then  and  there  take 
each  other  as  husband  and  wife. 

§  447.  Foreign  marriages. — It  is  a  well  settled 
principle    that  a    marriage  valid  where  it   is    cele- 


§448  HUSBAND  AND  WIFE.  279 

brated  will  be  deemed  valid  everywhere,  and  one  in- 
valid where  celebrated  will  be  deemed  invalid  every- 
where. This,  however,  is  subject  to  the  exception 
that  if  the  marriage  be  deemed  immoral  or  incestu- 
ous in  the  domicile  of  the  parties,  and  they  go  into 
another  country  merely  to  evade  the  law  of  their 
own,  the  marriage  will  be  void. 

§  448.  Duties  and  rights  of  husband  and  wife. — 
The  duty  of  the  husband  is  to  love  and  protect  the 
wife,  and  to  provide  for  her  according  to  his  means 
and  condition.  The  duty  of  the  wife  is  to  love, 
honor  and  obey  the  husband.  The  husband  ha.s  the 
right  to  select  the  domicile,  and  it  is  the  wife's  duty 
to  follow  him.  The  husband  has  not  now  any  right 
to  chastise  or  restrain  the  wife,  whatever  may  be  her 
fault,  and  neither  can  be  compelled  to  live  with  the 
other.  It  is  the  duty  of  the  husband  to  provide  for 
the  offspring  of  the  marriage,  according  to  his  station. 
By  reason  of  the  fiction  of  legal  unity  of  husband 
and  wife,  and  also  upon  grounds  of  public  policy, 
husband  and  wife  can  not  be  compelled  to,  and  will 
not  be  permitted  to,  testify  as  to  communications  made 
between  them.  And  formerly  they  were  not  allowed 
to  be  witnesses  for  or  against  each  other. 

At  common  law  a  husband  was  liable  for  his  wife's 
antenuptial  debts,  and  the  wife  could  make  no  con- 
tract that  bound  her.  In  most  of  the  states  legisla- 
tion has  greatly  enlarged  the  powers  and  liabilities 
of  married  women,  so  that  now  ability  seems  to  be 
the  rule  and  disability  the  exception.  A  wife  may  be 
the  agent  of  her  husband,  or  the  husband  may  be 
agent  for  the  wife.  A  wife  may  always  bind  her 
husband    for  necessaries  furnished    her,    and  what 


280  ELEMENTARY  LAW.  §  449 

these  are  depends  largely  upon  the  condition  of  the 
parties.  Formerly,  a  husband  was  liable  for  all 
wrongs  done  by  his  wife ;  now,  however,  keeping 
pace  with  the  enlargement  of  her  rights  and  powers, 
a  married  woman  is  liable  for  her  own  wrongs,  and 
the  husbandis  notliable  except  for  such  as  he  was  party 
to.  The  law  now  is  in  nearly  all  states  that  a  mar- 
ried woman  may  own  property  the  same  as  if  un- 
married, and  but  few  limitations  are  placed  upon  her 
power  to  dispose  of  her  property. 

§  449.  Divorce. — Many  of  the  duties  owing  from 
a  husband  or  wife  to  the  other  are  of  imperfect  legal 
obligation,  in  that  performance  of  them  can  not  be 
enforced,  but  for  some  of  the  grosser  violations  of  the 
marriage  contract,  the  law  gives  a  remedy  by  divorc- 
ing the  parties.  What  shall  be  cause  for  divorce  is 
the  subject  of  diverse  statutes  in  the  various  states. 
Generally  the  causes  are  adultery,  abandonment,  fail- 
ure to  provide,  or  cruelty.  The  suit  to  put  an  end 
to  the  marriage  contract  differs  from  the  ordinary 
suit  upon  contract,  in  that  the  plaintiff's  domicile, 
and  not  the  defendant's,  fixes  the  place  for  begin- 
ning suit.  The  reason  for  this  is  that  there  is  more 
than  a  contract  involved,  namely,  the  legal  status  of 
the  party  complaining.  On  account  of  the  interest 
the  state  has  in  the  marriage,  the  parties  have  no 
legal  right  to  agree  upon  a  decree  of  divorce,  but  the 
court  may,  and  usually  does,  hear  some  evidence. 

If  cause  for  divorce  exists,  the  court  usually  allows 
alimony  to  the  wife,  if  she  is  the  innocent  one.  It 
is  usual  in  estimating  alimony  to  base  it  upon  the 
value  of  the  wife's  interest  in  her  husband's  property. 


§450  HUSBAND  AND  WIFE.  281 

§  450.   Injuries  between  husband  and  wife.  —  At 

common  law  the  legal  existence  of  the  wife  merged 
in  her  husband.  No  suit  in  her  name  could  be  main- 
tained unless  he  joined.  There  was  scant  redress  by 
civil  suit  for  any  injury  done  by  one  to  the  other, 
and  but  few  injuries  were  punished  criminally.  As 
has  been  said,  the  tendency  of  legislation  has  been 
to  detroy  the  legal  fiction  that  husband  and  wife  are 
one  person,  and  to  treat  them  as  separate  individu- 
als, especially  in  their  property  rights.  In  some 
states  statutes  have  placed  the  wife  on  such  a  footing 
that  she  can  sue  her  husband  for  any  civil  wrong, 
the  same  as  if  unmarried.  In  others  the  courts  have 
been  conservative,  and  have  restrained  what  was  ap- 
parently the  liberal  intention  of  the  legislature,  and 
the  wife  is  not  allowed  to  sue  her  husband  for  many 
civil  wrongs. 

§  451.  Injuries  by  third  person. — The  right  to  re- 
cover for  injuries  done  by  a  third  person  to  husband 
or  wife  depended  originally  on  the  right  each  had  to 
services  of  the  other,  and  the  damage  consisted  in 
the  loss  of  such  services. 

From  the  fact  that  at  common  law  a  wife  was  the 
inferior  person,  it  followed  that  she  suffered  no  legal 
damage  by  the  lo??s  of  her  husband's  society  and 
services,  and  hence  she  was  not  permitted  to  recover 
damages  for  any  personal  injuries  to  him,  nor  for 
his  being  enticed  away  whereby  she  was  deprived  of 
support. 

With  the  statutory  enlargements  of  the  wife's 
rights  the  courts  have  gradually  enlarge:!  her  rights 
as  to  her  husband's  societv,  until  now  it  is  generally 


282  ELEMENTARY  LAW  §  451 

held  that  the  right  to  society  and  not  the  right  to 
services  is  the  true  basis  of  recovery,  and  that  a 
woman  as  well  as  a  man  may  maintain  an  action  for 
deprivation  of  the  right. 

At  common  law  a  husband  had  a  legal  right  in  the 
services  of  his  wife,  and  could  recover  damages  for 
any  injury  to  his  right.  The  basis  of  recovery  for 
the  husband  has  been  gradually  changed,  as  in  the 
wife's  case,  and  now  rests  principally  upon  the  right 
to  the  wife's  society.  So  that  now  a  husband  may 
recover  against  one  who,  by  artifice  and  fraud,  alien- 
ates the  affections  of  his  wife,  even  though  she  con- 
tinue to  reside  with  him  and  serve  him.  If  one 
brings  about  the  alienation  of  affection  of  another's 
wife,  or  a  separation,  it  matters  not  how  far  the  wife 
was  blameworthy.  The  wrong  to  the  husband  is  the 
same  whether  the  wife  consented  or  not.  Mere  giv- 
ing shelter  to  a  wife  who  has  left  her  husband  will 
not  raise  a  liability.  But  if  any  influence  is  used 
over  the  wife  to  continue  the  separation,  or  if  access 
is  denied  to  the  husband,  he  may  have  an  action. 
If,  however,  the  husband  has  given  cause  for  divorce, 
he  can  not  be  heard  to  complain.  And  if  the  hus- 
band in  any  manner  connived  at  the  seduction  of  his 
wife  he  can  not  recover  damages  therefor. 

Where  a  wife  receives  personal  injuries  which  in- 
capacitate her  for  her  duties,  there  are  two  kinds  of 
damage,  1st,  that  suffered  directly  by  the  wife,  2d, 
that  consequentially  suffered  by  the  husband.  At 
common  law,  for  the  former,  being  her  pain  and 
suffering,  humiliation  and  the  like,  the  suit  was 
in   the   name  of  both  ;    and    for   the   latter,   being 


§451  HUSBAND  AND  WIFE.  283 

the  loss  of  society  and  services,  the  husband  sued 
alone.  In  either  case  the  amount  recovered  belonged 
to  the  husband.  Now,  however,  it  is  generally  the 
law  that  the  damages  in  the  former  case  inure  to  the 
wife,  and  only  in  the  latter  case  to  the  husband. 


CHAPTER  XXXIV. 

PARENT  AND  CHILD. 

§  452.  Legitimacy. — Children  may  be  either  le- 
gitimate or  illegitimate,  according  as  their  parents 
are  or  are  not  lawful  husband  and  wife  ;  or  they 
may  be  adopted.  Every  child  born  to  a  wife  during 
the  continuance  of  the  marriage  relation  is  presumed 
to  be  the  child  of  her  husband.  The  presumption  is 
not  conclusive,  however,  and  illegitimacy  of  the 
child  may  be  established  by  proof,  but  only  by  clear 
and  convincing  proof.  Illegitimate  children  born 
before  marriage  become  legitimate  upon  marriage 
of  their  parents,  but  in  England  and  a  few  states 
this  is  not  the  law.  At  common  law,  the  children 
born  of  a  void  marriage  were  illegitimate,  but  it 
is  generally  provided  by  statute  that  if  the  marriage 
was  entered  into  in  good  faith,  the  children  shall  be 
deemed  legitimate.  The  common  law  did  not  recog- 
nize the  adoption  of  children.  Statutes  in  nearly  all 
the  states  make  no  provision  therefor.  And  gener- 
ally upon  the  adoption  of  a  child,  the  adopting 
parent  and  the  child  have  all  the  rights,  duties  and 
liabilities  that  exist  between  natural  parent  and  child. 

§  453.  Rights  and  duties  of  parent  and  child. — 
The  mother  of  a  bastard  has  the  right  to  custody  and 
control,  and  she   is  under  obligation  to  support  it ; 

(284) 


§454  PARENT  AND  CHILD.  285 

its  supposed  father  is  not  liable  for  its  support,  ex- 
cept under  special  proceedings  provided  by  statute. 
At  common  law  a  bastard  could  not  inherit  either 
from  his  father  or  mother,  but  by  statute  the  bastard 
now  in  most  states  inherits  from  the  mother,  and  in 
some  inherits  from  the  father  in  the  absence  of  other 
heirs. 

As  to  legitimate  children,  theduty  of  the  parent,  first 
the  father,  or  if  he  be  dead  the  mother,  is  to  protect,  edu- 
cate and  maintain  the  child  during  minority.  This  duty 
resting  upon  the  parent  is  legally  a  privilege  rather 
than  a  duty,  for  the  law  only  permits,  but  does  not 
compel,  the  parent  to  perform  it.  No  action  is  per- 
mitted by  a  child  against  a  parent  for  any  failure  in 
these  duties,  even  though  the  failure  may  be  crimi- 
nally punishable.  By  way  of  compensation  for.  and 
in  aid  of  the  parent's  duties,  the  law  gives  to  the  parent 
the  custody,  control  and  services  of  his  minor  chil- 
dren. He  may  moderately  and  reasonably  correct  or 
restrain  the  child.  So  long  as  he  is  a  fit  person,  he  is 
entitled  to  the  custody  of  the  child.  All  rights  and 
duties  as  between  parent  and  child  end  with  the  ma- 
jority of  the  child  or  emancipation,  i.  e.,  the  agree- 
ment, express  or  implied,  of  the  parent  and  child 
that  the  child  may  be  treated  as  an  adult. 

A  parent  is  not  liable  for  wrongs  done  by  the 
child  to  other  persons,  unless  done  by  the  parent's 
direction,  or  in  his  service.  Of  course,  a  child  can 
not  be  held  liable  for  wrongs  done  by  its  parent. 

§454.  Wrongs  as  between  parent  and  child. — 
Whether  a  parent  will  be  civilly  liable  for  personal 
wrongs  done  to  a  child  is  not  wholly  settled.  By 
ccme  text-writers  it  is  stated  that  there  is  no  civil  lia- 


286  ELEMENTARY  LAW.  §  455 

bility,  so  far  as  assault  and  battery  or  imprisonment 
is  concerned,  it  being  deemed  safer  to  rely  upon  the 
natural  affection  of  a  parent. 

For  any  wrongs  done  by  a  parent  to  the  property 
of  his  child,  he  is  answerable  the  same  as  he  would 
be  to  any  other  person. 

For  any  injury  done  by  a  child  to  its  parent, 
whether  to  the  person  or  property,  the  child  will  be 
civilly  responsible  to  the  same  extent  as  it  would  be 
to  any  other  person. 

§  455.  Wrongs  by  third  persons. — Whenever  a 
third  person  does  an  injury  to  a  parent  or  a  child, 
there  is  a  double  loss,  direct  to  the  one,  and  conse- 
quential to  the  other.  And  the  question  is  how  are 
such  wrongs  done,  and  for  what  loss  is  the  wrong- 
doer held  responsible.  These  will  be  considered 
separately. 

§  456.  Child's  interest  in  the  parent. — In  the  re- 
lation of  parent  and  child,  the  general  rule  applies 
that  the  inferior  has  no  rights  in  the  superior,  hence 
a  child  has  no  such  interest  in  the  parent  as  will 
support  a  suit  by  the  child  to  recover  for  injuries  to 
the  parent.  The  only  exception  is  in  cases  of  inju- 
ries causing  death,  when  the  statute  gives  a  right  of 
recovery  to  the  personal  representative  for  the  bene- 
fit of  wife  or  child.  This  has  been  considered  else- 
where. 

§  457.  Parent's  interest  in  the  child. — The  parent 
is  entitled  to  the  services  of  his  child,  and  all  the 
profits  to  be  derived  therefrom  until  majority.  Who- 
ever incapacitates  the  child  from  rendering  the  serv- 
ice, causes  legal  damage  to  the  parent,  and  is  subject 
to  an  action.     The  right  to  recover  is  based  on  the 


§458  PARENT  AND  CHILD.  287 

right  to  services  and  the  duty  to  protect.  At  com- 
moil  law  the  parent  recovered  only  to  the  same  extent 
that  a  master  would  recover  for  loss  of  services  of 
his  servant. 

Damage  to  the  parent  may  arise  by  injuries  that 
diminish  the  child's  ability  to  serve,  or  by  wholly 
depriving  the  parent  of  its  services;  and  the  latter 
may  occur  by  enticing  the  child  away  or  by  causing 
its  death.  The  last  named  wrong  has  been  treated 
in  a  former  section. 

§  458.  Physical  injuries  to  the  child. — Any  one 
who  by  a  wrongful  act  injures  the  child  so  as  to  de- 
prive the  parent  of  its  services,  or  to  cause  loss 
through  care  and  attendance  upon  it,  is  liable  to  the 
parent  therefor.  If  the  injury  is  of  a  continuing 
nature,  the  parent  recovers  not  only  the  value  of  the 
services  actually  lost,  but  for  the  deprivation  or  im- 
pairment of  services  up  to  the  age  of  twenty-one. 
In  estimating  the  value  of  services  the  expense  of 
supporting  the  child  must  be  considered.  It  is  only 
for  loss  of  services  that  the  parent  recovers;  for  mere 
loss  of  happiness,  comfort  and  society  of  the  child, 
except  so  far  as  they  can  be  viewed  as  services,  there 
can  be  no  recovery.  The  parent's  anxiety,  grief  and 
sympathy  for  the  child's  injury  are  not  elements  of 
damage  in  a  legal  sense.  For  the  child's  suffering, 
mental  anxiety  and  permanent  injury  or  disfigure- 
ment, the  parent  has  no  right  of  action  for  his  own 
benefit,  the  action  for  all  such  damage  being  in  the 
name  of  the  child  itself  and  the  recovery  being  for 
its  own  benefit. 

§  459.  Enticing  away  the  child. — The  parent  is 
entitled  to  the  custody  as  well  as  the  services  of  the 


288  ELEMENTARY  LAW.  §  460 

child ;  and  if  a  wrong-doer  get  possession  of  it, 
the  parent  may  by  legal  proceedings  have  it  restored 
to  him. 

Whoever  by  force  or  artifice  takes  a  child  away 
from  its  parent  is  liable  to  the  parent  for  the  loss  of 
its  services.  The  recovery  in  such  case  is  based  upon 
the  relation  of  master  and  servant,  rather  than  upon 
the  parental  relation.  For  if  the  parent  has  emanci- 
pated the  child,  that  is,  given,  to  it  the  right  to  enjoy 
all  the  profits  of  its  services,  so  that  there  is  no 
longer  the  relation  of  master  and  servant,  there  is  no 
right  of  recovery  in  favor  of  the  parent. 

§  460.  Seduction. — The  wrong  by  seduction  of  a 
female  child  has  some  elements  that  distinguish  it 
from  other  wrongs.  The  law  has  labored  under  some 
difficulties  from  which  it  has  emerged  but  slowly. 
Under  the  common  law  the  right  of  action  was  based 
purely  upon  the  parent's  right  as  a  master  to 
the  services  of  his  daughter  as  a  servant.  It  fol- 
lowed from  this,  that  while  he  could  recover  against 
a  seducer,  if  his  daughter  resided  at  home,  or  was 
not  actually  in  the  service  of  some  one  else,  he  could 
not  recover  if  another  person  were  lawfully  entitled 
to  her  services  by  contract.  The  law  permitted  the 
father  to  recover  for  the  shame  and  humiliation  con- 
sequent upon  the  seduction,  but  only  in  cases  where 
he  was  entitled  to  recover  on  account  of  loss  of  serv- 
ices. Consequently,  when  she  was  in  the  service 
of  another,  the  only  damages  recoverable  were  the 
loss  of  her  time  and  the  expenses,  and  these  were  re- 
coverable by  the  person  who  was  entitled  to  the  serv- 
ice or  who  paid  the  expenses.  The  anomaly  was  that 
the  action  was  made  to  depend  upon  loss  of  services, 


§4G0  PARENT  AND  CHILD.  289 

which  generally  were  merely  nominal,  whereas  the 
real  injury  for  which  the  substantial  damages  were 
given  was  the  shame  and  disgrace. 

To  remedy  this  inconsistency  statutes  have  been 
passed  in  most  of  the  states  giving  the  parent  a  right 
of  action  for  the  seduction  of  the  daughter,  whether 
or  not  the  daughter  be  living  with  the  parent,  or  the 
parent  be  entitled  to  her  services.  A  further  right  of 
action  is  given  to  the  woman  seduced  to  sue  for  her 
own  seduction. 


19 


CHAPTER  XXXV. 

GUARDIAN    AND    WARD. 

§  461.  Kinds  of  guardianship. — A  guardian  is  one 
who  has  the  care  and  management  of  either  the  per- 
son or  property,  or  both,  of  a  child  during  minority. 
At  common  law  there  were  many  kinds  of  guardian- 
ship, which  have  become  obsolete.  In  the  United 
States  at  present  the  law  relating  to  guardianship  is 
much  the  same  for  all  the  states. 

The  following  are  to  be  considered  :  1st.  Natural 
guardians.  2d.  Testamentary  guardians.  3d.  Legal 
guardians.  4th.  Guardians  ad  litem.  5th.  Prochein 
ami  or  next  friend. 

§  462.  Natural  guardian. — By  this  is  meant  the 
father,  or,  on  his  death,  the  mother.  None  other 
can  be  natural  guardian.  The  natural  guardian  has 
control  of  the  person  of  the  child,  but  not  of  its 
property.  The  title  is,  in  fact,  nothing  more  than 
another  name  for  the  natural  right  of  a  parent  to 
the  custody  and  control  of  the  child.  It  adds  noth- 
ing to  the  legal  right.  There  is  no  action  that  may 
be  brought  for  an  infant  by  natural  guardian,  and 
whenever  a  parent  sues  as  such  on  account  of  any 
injury  to  the  child  the  recovery  is  for  the  benefit  of 
the  parent  only. 

§  463.  Testamentary  guardian. — By  this  is  meant 
the  person  named  in  a  parent's  will  to  be  the  guard- 

(290) 


§464  GUARDIAN  AND  WARD.  291 

ian  of  a  child.     Such  person  simply  has  a  prefer 
to  be  appointed  the  legal  guardian,  if  all  other  things 
are  equal.     He  has  no  powers  unless  appointed   by 
the  court,  and  when  legally  appointed  his  status  is 
that  of  an  ordinary  legal  guardian. 

§  4G4.  Legal  guardian. — By  this  is  meant  the  per- 
son appointed  to  be  guardian  by  the  court  having 
jurisdiction.  Generally  the  father  has  the  prefer- 
ence, then  the  mother,  then  the  next  of  kin  in  order. 
The  legal  guardian  always  has  exclusive  control  of 
the  ward's  property  and  sometimes  of  the  ward's 
person.  So  long  as  the  parent  claims  the  custody  of 
the  child's  person,  the  legal  guardian  has  no  right 
to  it.  But  if  the  parents  are  dead,  or  unfit,  the  legal 
guardian  is  entitled  to  custody. 

The  guardian's  duty  is  to  see  that  the  ward  is  cared 
for  and  properly  educated.  As  to  the  ward's  estate, 
the  guardian  is  bound  to  exercise  care  and  diligence 
in  managing  it;  must  account  from  time  to  time  to 
the  court  appointing  him,  and  upon  maturity  of  the 
ward  must  pay  over  and  deliver  to  the  ward  the  en- 
tire estate.  The  guardian  is  held  to  strict  account- 
ability. Unauthorized  acts  of  the  guardian  may  be 
adopted  if  beneficial,  or  rejected  if  detrimental  to 
the  estate;  and  a  guardian  is  not  permitted  to  reap 
any  personal  benefit  whatever  out  of  the  manage- 
ment of  the  estate,  except  what  is  allowed  by  the 
court  as  compensation  for  his  services.  Frauds  of 
the  guardian  have  been  treated  in  a  previous  chapter. 

Among  the  guardian's  duties  are  the  collection  of 
debts  and  the  defense  of  all  suits  against  the  ward. 
What  suits  must  and  what  may  be  brought  in  the 
name  of  the  guardian  for  the  infant,  is  regulated  by 


292  ELEMENTARY  LAW.  §  465 

statute  in  the  several  states.  In  cases  where  the  law 
does  not  permit  the  guardian  to  litigate  for  the  infant 
or  where  though  entitled  he  refuses  to  do  so,  it  is 
generally  provided  that  the  action  or  defense  may  be 
made  for  the  infant  by  guardian  ad  litem  or  next 
friend. 

§  465.  Guardian  ad  litem. — After  a  suit  is  begun 
against  an  infant,  and  the  infancy  is  disclosed  to  the 
court,  the  court  will  see  to  it  that  he  is  represented 
by  a  guardian.  Whenever  the  legal  guardian  ap- 
pears for  the  infant  a  guardian  ad  litem  is  usuall}7- 
not  necessary.  But  in  absence  of  the  legal  guardian 
the  court  appoints  a  guardian  for  the  purposes  of 
that  suit  only — a  guardian  ad  litem.  He  is  an  officer 
of  the  court,  may  be  removed  at  pleasure,  has  no 
power  over  the  infant's  person  or  propeiiy,  has  no 
power  to  admit  or  waive  anything  ;  his  functions  be- 
ing only  to  see  that  the  infant's  case  is  fully  pre- 
sented to  the  court  for  decision.  The  guardian  ad 
litem  is  always  for  the  defense. 

§  466.  Next  friend. — An  infant  is  not  permitted 
to  maintain  an  action  in  his  own  name  solely,  if  his 
disability  is  brought  to  the  attention  of  the  court. 
Wherever  the  legal  guardian  can  not  or  will  not 
bring  suit  for  the  infant,  the  infant  must  be  repre- 
sented by  his  next  friend.  The  infant  may  select, 
if  he  wishes,  or,  if  suit  is  brought  before  the  in- 
fant has  selected,  the  court  may  appoint  the  next 
friend.  Any  one  may  act  as  next  friend  ;  it  is 
not  confined  to  kin.  The  next  friend  is  subject  to 
control  of  the  court,  and  may  at  any  time  be  re- 
moved by  the  court  and  another  appointed.  One 
purpose  in   requiring  a  next    friend    for   an   infant 


§467  GUARDIAN  AND  WARD.  293 

is  that  there  may  be  some  one  responsible  for  the 
costs  of  the  suit.  The  next  friend  is  liable  for  costs 
while  the  infant  is  not.  It  is  usually  provided  that 
there  need  be  no  next  friend,  where  an  infant  is  a 
joint  plaintiff  with  adults. 

§  467.  Rights  of  guardian  and  ward  in  each  other. 
— A  guardian  has  no  right  to  the  services  of  a  ward, 
and  unless  the  relation  of  master  and  servant  exists, 
can  not  recover  for  his  own  benefit  any  damages  on 
account  of  injuries  to  the  ward. 

A  ward  has  no  interest  in  the  guardian's  services 
that  will  sustain  an  action  by  the  ward  against  one 
who  injures  the  guardian. 

§  468.  Wrongs  between  guardian  and  ward. — As 
between  each  other,  guardian  and  ward  are  answer- 
able for  injuries  done,  to  the  same  extent  as  if  the 
relation  did  not  exist.  Except,  however,  that  where 
the  guardian  has  custody  of  the  ward's  person,  he 
stands  in  loco  parentis  and  has  a  larger  right  to  re- 
strain and  correct  the  ward.  And  also,  where  the 
influence  of  the  guardian  is  misused,  the  relation 
enters  as  a  factor  into  the  duty  owing  and  the  wrong 
done.     This  is  shown  in  the  chapter  on  frauds. 

§  469.  Guardian  of  the  insane. — Analogous  to  the 
guardianship  of  infants  is  the  guardianship  of  the 
insane. 

It  is  generally  provided  by  statute  that  upon  a  ju- 
dicial determination  of  the  insanity  of  a  person,  the 
court  may  appoint  a  guardian  to  take  charge  of  the 
person  and  property  of  the  insane.  The  duties  of 
such  guardians  are  the  same  in  general  as  those  of 
guardians  of  infants,  and  they  are  held  to  like  ac- 


294  ELEMENTARY  LAW.    I  §  469 

countability.     It  is  their  duty  to  appear  for  and  de- 
fend suits  against  their  insane  wards. 

The  guardianship  may  be  terminated  upon  the 
restoration  to  sanity  of  the  ward,  which  fact  must 
be  judicially  determined  in  the  same  way  that  in- 
sanity was  determined. 


CHAPTER   XXXVI. 

MASTER  AND  SERVANT. 

§  470.  Growth  of  the  relation. — The  relation  of 
master  and  servant  may  exist  between  father  and 
ehild,  guardian  and  ward,  husband  and  wife,  or  in 
fact  between  any  persons  capable  of  contracting.  The 
relation  arises  out  of  contract  made  between  them, 
by  which  the  master  acquires  a  legal  authority  and 
control  over  the  servant.  Originally,  it  was  only  a 
family  right  of  no  great  importance,  the  servant 
always  being  a  member  of  the  master's  household. 
But  with  the  vast  development  of  business  enter- 
prises, the  relation  has  been  expanded  to  enormous 
dimensions,  and  is  now  one  of  the  most  important 
in  the  business  world.  It  applies  to  every  form  of 
occupation  in  which  one  person's  work  is  subject  to 
the  control  and  direction  of  another  to  whom  he  is 
responsible. 

§  471.  Apprentices. — An  apprentice  is  one  who  is 
bound  out  to  a  master  to  learn  some  trade,  business 
or  profession,  the  master  being  also  bound  to  instruct 
and  initiate  him  in  the  occupation.  An  apprentice 
may  be  either  an  adult  or  a  minor.  So  far  as  an 
adult  is  concerned,  he  is  bound  by  whatever  contract 
he  makes,  and  his  rights  and  liabilities  must  be  de- 
termined therefrom.  So  far  as  infants  are  concerned, 

(295) 


296  ELEMENTARY  LAW.  §  472 

the  matter  is  regulated  by  statute  in  the  several 
states  which  must  be  exactly  followed.  It  is  usual 
to  require  the  articles  of  apprenticeship  to  be  re- 
corded, and  they  must  be  signed  by  the  parent  or 
guardian,  or  in  their  absence  they  must  be  approved 
by  the  probate  court.  If  the  infant  is  over  fourteen 
years  of  age,  his  assent  and  signature  are  generally 
required.  The  master  acquires  some  of  the  rights  of 
a  parent  over  the  infant  apprentice,  such  as  the  right 
of  moderate  restraint  and  punishment,  and  being  in 
loco  parentis  the  master  must  care  for  the  training, 
health  and  safety  of  the  apprentice.  In  other  re- 
spects, the  rights  and  liabilities  are  the  same  as  for 
ordinary  masters  and  servants. 

§  472.  Who  is  a  master  or  servant? — It  is  not 
necessary  that  there  be  a  definite  term  of  service,  nor 
that  any  wages  be  paid  or  due.  And  the  relation 
may  exist  even  where  the  services  were  volunteered, 
if  they  were  of  such  nature  that  a  contract  can  be 
implied.  The  test  in  all  cases  is  the  sort  of  control 
that  is  exercised  over  the  work.  The  relation  of 
master  and  servant  exists  when  one  has  the  right  to 
control  and  direct  the  work  of  another  who  is  em- 
ployed to  render  personal  service  otherwise  than 
in  pursuit  of  a  separate  calling.  The  emplo}^er  may 
contract  that  the  employe  shall  undertake  to  bring 
about  a  certain  result  and  shall  assume  all  responsi- 
bility for  the  means  and  method  of  the  work.  In 
such  case  the  employe  is  not  a  servant,  but  an  inde- 
pendent contractor. 

§  473.  Independent  contractor. — A  person  is  not 
a  servant,  but  an  independent  contractor,  who  is  em- 
ployed, but  is  not  subject  to  the  order  or  control  of  the 


§474  MASTER  AND  SERVANT.  297 

employer  as  to  the  method  or  means  to  be  taken  in 
doing  the  work.  The  general  rule  is  that  an  em- 
ployer is  not  responsible  for  the  acts  of  an  independ- 
ent contractor.  If,  however,  the  employer  dictates 
the  method,  or  retains  any  direction  or  control  over 
the  contractor,  he  will  to  that  extent  be  answerable 
for  any  injuries  traceable  to  him.  And  if  the  work 
is  unlawful  in  itself,  or  must  necessarily  cause  the 
damage,  the  employer  may  be  held  liable  jointly 
with  the  contractor.  An  independent  contractor's 
liability  to  the  employer  for  wrongs  is  no  different 
from  that  of  any  stranger,  except  that  he  is  bound 
to  perform  his  contract. 

§  474.  The  contract  between  master  and  servant. 
— A  general  hiring  without  limitation  is  at  common 
law  a  hiring  by  the  year.  From  custom,  or  from  the 
times  of  payment,  the  period  may  be  held  to  be  month- 
ly, weekly,  or  daily.  If  the  time  is  expressly  fixed, 
it  controls,  and  both  master  and  servant  are  bound 
to  the  performance  of  the  contract.  If  the  contract 
is  for  doing  what  is  illegal  it  is  void;  so,  also,  if  the 
hiring  is  for  an  immoral  purpose;  and  if  any  essen- 
tial part  of  the  consideration  is  illegal  the  whole 
contract  is  void.  Contracts  for  personal  services 
can  not  be  specifically  enforced,  nor  can  they  be  as- 
signed or  transferred  without  consent  of  both  parties. 
Such  contracts  are  always  subject  to  the  implied  con- 
dition that  the  person  shall  be  able  to  perform  the 
service,  and  if  he  is  disabled  without  his  fault  he 
is  excused  from  further  performance.  In  the  ab- 
sence of  stipulation  or  statute  to  the  contrary,  wages 
are  payable  at  the  end  of  each  term  of  service. 

§  475.   Termination  of  the  relation. — In  addition 


298  ELEMENTARY  LAW.  §  475 

to  the  termination  by  expiration  of  the  time  of 
service,  or  the  death  or  disablement  of  either  party, 
the  contract  of  service  may  be  put  to  an  end,  (1)  by 
the  master's  discharging  the  servant,  or  (2)  by  the 
servant's  abandoning  the  service. 

§  476.  Discharge  by  the  master. — The  master 
may  discharge  the  servant  for  sufficient  cause.  Just 
what  is  sufficient  cause  must  depend  upon  the  facts 
in  each  case.  Generally,  however,  it  is  sufficient 
cause  for  discharge  that  the  servant  is  guilty  of  dis- 
obedience, immoral  conduct,  incompetency,  habitual 
negligence,  drunkenness,  fraudulent  conduct  and 
the  like.  In  case  of  discharge  for  cause  the  general 
rule  is  that  the  servant  is  entitled  to  payment  for 
what  he  has  done  up  to  the  time  of  discharge,  but  is 
not  entitled  to  any  damages  for  the  unexpired  term. 

If  the  discharge  be  without  good  cause,  the  serv- 
ant is  entitled  not  only  to  payment  for  the  work 
actually  done,  but  to  damages  for  the  loss  of  his 
wages  during  the  unexpired  term.  He  is  bound,  how- 
ever, to  seek  other  employment.  The  measure  of 
damages  therefore  is  the  unpaid  balance  of  wages  for 
the  entire  period,  less  what  he  might  have  earned 
elsewhere. 

§  477.  Abandonment  by  the  servant. — The  servant 
is  justified  in  abandoning  the  service,  if  he  suffers 
ill  usage  at  the  hands  of  the  master,  or  if  the  master 
refuses  to  allow  him  to  work.  These  faults  of  the 
master  are  equivalent  to  a  discharge,  and  the  liability 
is  measured  accordingly. 

Sickness  or  inevitable  accident  disabling  the  serv- 
ant will  justify  an  abandonment  by  the  servant,  but 


§478  MASTER  AND  SERVANT.  299 

will  entitle  him  to  payment   only  fur  what  he  has 
actually  done. 

For  an  unjustifiable  abandonment  of  servici 
the  servant  during  a  term  of  service,  it  was  formerly 
the  rule  that  as  the  price  was  entire  and  to  be  paid 
for  the  whole  service,  there  could  be  no  recovery  for 
a  part.  The  rule  now  in  many  states  is  that  the 
servant  may  recover  a  proportionate  part  of  the 
wages,  less  whatever  damages  the  abandonment 
caused  to  the  master. 

§  478.  Wrongs  independent  of  contract. — We  pass 
now  to  the  consideration  of  the  tortious  wrongs  that 
involve  the  relation  of  master  and  servant.  Such 
wrongs  may  create  liability  in  the  following  ways, 
which  will  be  considered  in  order  : 

1.  Liability  of  third  persons  to  the  master. 

2.  Liability  of  third  persons  to  the  servant. 

3.  Master's  liability  for  injury  to  others. 

4.  Servant's  liability  for  injury  to  others. 

5.  Master's  liability  to  servant  for  injuries  (a)  by 
master,  (b)  by  persons  for  whom  the  master  is  an- 
swerable. 

6.  Servant's  liability  to  master  for  injuries  (a)  to 
the  master,  (b)  to  others. 

§  479.  Liability  of  third  persons  to  the  master. — 
A  master  has  an  action  against  one  who  wrongfully 
entices  away  his  servant  or  prevents  the  performance 
of  the  servant's  duty  to  the  master;  and  this  even 
though  the  relation  of  master  and  servant  be  deter- 
minable at  will.  One  who  harbors  another's  servant, 
intending  thereby  to  wrongfully  deprive  the  master 
of  the  service  of  the  servant,  may  be  liable.  Where 
the  wrong  is  one  causing  direct  loss  to  the  servant 
and  consequential  loss  to  the  master,  as  in  the  case 


300  ELEMENTARY  LAW.  §  4S0 

of  personal  injury  to  the  servant,  each  ma}r  recover 
for  his  own  damages. 

§  480.   Liability  of  third  persons  to  the  servant. 

— A  servant  being  the  inferior  has  no  such  interest 
in  the  master  as  will  sustain  an  action  by  the  serv- 
ant for  consequential  damages  from  an  injury  to  the 
master.  The  servant  has  a  right  of  action  against 
any  one  who  by  wrongful  acts  procures  his  discharge 
provided  he  can  show  damages. 

§  481.  Master's  liability  for  injury  to  others. — 
The  question  here  is,  for  what  acts  and  omissions  of 
the  servant  is  the  master  liable  to  other  persons  ? 
That  the  master  is  liable  at  all  is  upon  the  maxim, 
"He  who  acts  through  another  acts  himself."  The 
wrongs  done  may  have  been  either  intended  or  un- 
intended by  master  or  servant,  and  the  servant  may 
have  acted  in  violation  of  or  obedience  to  the  master's 
orders.  The  persons  injured  may  be  strangers,  to 
whom  no  special  duty  was  owing,  or  persons  to  whom 
the  master  was  under  special  obligation,  such  as 
passengers  or  guests  at  inns.  Upon  the  nature  of 
the  wrong  and  the  kind  of  duty  owing  depends  the 
liability  of  the  master. 

§  482.  Intentional  and  unintentional  injuries. — 
The  general  rule  is  that  where  the  servant's  acts  are 
within  the  real  or  apparent  scope  of  his  employment, 
the  master  is  responsible;  otherwise  not.  Hence  for 
willful  and  malicious  acts  of  the  servant  the  master 
is  not  generally  liable,  for  such  acts  can  not  be  sup- 
posed to  be  authorized.  The  rule  for  liability  be- 
comes more  stringent,  however,  if  the  master  is  under 
some  special  duty  to  the  injured  person,  as  in  case  of 
a  passenger,  and  has  delegated  the  performance  of 


§483  MASTER  AND  SERVANT.  301 

that  duty  to  the  servant.  In  such  case  the  master 
is  responsible  for  all  injuries  done  by  the  servant, 
during  the  time  of  the  service;  hence  the  master 
may  be  liable  even  for  malicious  acts  done  in  express 
violation  of  orders. 

§  483.  Servant's  liability  for  injuries  to  others. — 
For  any  negligence  or  unlawful  act  of  a  servant  he 
is  liable  to  the  person  injured  whether  the  master  is 
liable  or  not,  and  no  matter  what  is  the  relation  of 
the  injured  person  to  the  master.  There  are  cases  in 
which  the  servant  and  master  are  both  held  liable, 
but  in  which,  as  between  themselves,  the  master  is 
liable  over  to  the  servant  for  any  loss  suffered  by  the 
servant.  In  such  cases  the  servant  must  have  acted 
in  good  faith  and  in  obedience  to  the  master's  orders. 

§  484.  Master's  liability  to  the  servant. — First, 
as  to  injuries  by  the  master  himself.  While  it  is  a 
privilege  of  the  master  to  give  a  "character  "  for 
the  servant,  the  servant  suffers  no  legal  damage  if 
the  certificate  is  refused,  even  though  the  refusal  be 
arbitrary  and  unjust.  For  any  injury  resulting  to  a 
servant  from  the  direct  personal  act  of  the  master, 
the  master  is  liable  to  the  servant  the  same  as  though 
no  such  relation  existed.  For  any  failure  of  the 
master  to  perform  the  duty  he  owes  to  his  servant,  he 
is  liable  to  the  servant  if  injury  results  therefrom. 

§  485.  Duties  of  master  to  servant. — The  master 
owes  the  duty  to  his  servant  to  exercise  ordinary 
care  in  the  following  respects  :  In  providing  and 
maintaining  a  safe  place  to  work  and  safe  appliances 
to  work  with,  in  taking  due  precautions  to  prevent 
accidents,  in  guarding  the  servant  against  dangers 
unknown  to  him,  in  refraining  from  exposing  the 


302  ELEMENTARY  LAW.  J  §  43(3 

servant  to  unnecessary  or  unknown  dangers,  in  em- 
ploying as  his  fellow-servants  only  competent  per- 
sons, and  in  employing  these  in  sufficient  number. 
These  are  the  principal  duties,  though  others  might 
be  named.  If  the  master  exercise  ordinary  care  in 
discharging  his  duties,  he  is  not  liable,  though  the 
servant  be  injured. 

§  486.  Risks  assumed  by  servant. — The  servant  as- 
sumes all  risks  that  he  ought  to  know  are  incident 
to  the  discharge  of  his  duties,  all  risks  from  negli- 
gence and  wrongs  of  his  fellow-servants,  and  he  is 
bound  to  use  care  himself.  To  some  extent  the  serv- 
ant will  be  excused  for  incurring  a  danger  under 
order  of  the  master,  but  not  if  the  danger  be  glaring, 
nor  if  it  is  fully  known  to  the  servant  and  voluntarily 
assumed.  As  a  general  rule,  where  the  opportuni- 
ties of  the  servant  for  discovering  danger  are  equal 
to  the  master's,  the  master  is  not  liable. 

§  487.  Fellow-servants. — If  the  master  has  exer- 
cised due  care  in  selecting  and  retaining  servants, 
he  has  done  his  duty.  If,  nevertheless,  injury  re- 
sults to  one  servant  by  the  wrongful  act  or  omission 
of  another  servant,  the  master  is  not  liable.  It  is 
essential,  however,  that  the  servants  shall  have  been 
within  the  same  general  employment,  for  if  two  serv- 
ants are  engaged  in  occupations  wholly  independent 
of  each  other,  they  are  not  fellow-servants.  And  it 
is  to  be  further  noted  that  the  fellow-servant  rule  ap- 
plies only  to  the  servants  personally  ;  so  that  if  the 
wife  or  child  of  a  servant  be  injured  by  another 
servant,  the  master  is  held  liable  for  both  the  direct 
and  consequential  injury. 

§  488.   Vice-principal. — If,    however,   the   person 


§489  MASTER  AND  SERVANT.  303 

causing  injury  to  the  servant  be  discharging  a  duty 

which  was  owing  from  the  master  himself  to  the 
servant,  he  is  regarded  to  that  extent  as  the  master. 
The  name  usually  given  is  vice-principal.  For  any 
failure  to  discharge  the  duties  he  owes  to  his  servant 
the  master  is  liable,  whether  the  act  or  omission 
which  causes  the  injury  be  his  own  or  his  vice- 
principal's.  A  person  may  at  the  same  time  be  a 
vice-principal  and  fellow-servant;  the  character  of 
the  act  done  determines  in  what  capacity  he  acts. 

§  489.  Servant's  liability  to  master. — For  any 
wrongful  act,  neglect  or  incompetency  of  a  servant, 
which  causes  injury  to  the  master's  person  or  prop- 
erty, the  servant  is  liable  to  the  master,  provided 
the  master  is  not  also  in  fault.  If  a  servant  exceed- 
the  authority  conferred  upon  him  by  the  master,  and 
so  involves  the  master  in  loss  the  servant  is  liable. 
And  a  servant  is  liable  to  the  master  for  any  dam- 
ages which  the  master  has  been  compelled  to  pay  to 
a  third  person  on  account  of  the  wrongful  act  or  de- 
fault of  the  servant,  provided  the  master  is  himself 
free  from  fault. 


CHAPTER  XXXVII. 

WRONGS  TO  INCORPOREAL  PROPERTY. 

§490.  Incorporeal  hereditaments.  —  Incorporeal 
hereditaments,  or  inheritable  rights  issuing  out  of 
corporeal  property,  have  been  described  in  a  former 
chapter.  These  rights  partake  of  the  nature  of  the 
things  out  of  which  they  issue,  but,  since  the  rights 
themselves  can  not  be  seen  or  handled,  it  is  evident 
that  they  are  incapable  of  direct  injury.  Whatever 
injury  is  done  must  be  consequential.  Hence  the 
remedies  for  direct  wrongs  are  not  applicable  to  in- 
corporeal hereditaments.  If  one  has  a  right  of  way 
across  another's  land,  and  it  is  interfered  with  so 
that  he  is  deprived  of  its  use,  his  remedy  is  not  by 
ejectment,  but  by  an  action  for  the  consequential 
damages  or  by  an  injunction.  But  where  the  conse- 
quence of  a  wrong  to  an  incorporeal  right  is  also  an 
injury  to  corporeal  property,  the  remedies  as  for  a 
direct  wrong  may  be  had.  For  instance,  every  land- 
owner having  an  easement  for  lateral  support,  if  his 
neighbor  willfully  and  maliciously  takes  away  the 
support  and  causes  the  land  to  fall,  the  owner  may 
treat  it  as  a  direct  wrong  done  by  force  to  his  land. 

§  491.  Other  incorporeal  rights. — There  is  an  im- 
portant class  of  incorporeal  rights  which  do  not  issue 
out  of  property  in  the  sense  that  incorporeal  heredi- 
taments do,  but  on  the  contrary  are  the  source  out  of 

(304) 


§492     WRONGS  To  INCORPOREAL  PROPERTY.        305 

which  the  tangible  property  arises.  This  class  em- 
braces the  subjects  of  copyrights,  patents  and  trade- 
marks. Public  policy  and  the  sense  of  justice  dictate 
that  one  who  creates  anything  should  be  permitted  to 
enjoy  the  fruits  of  his  labors.  It  is  evident  that  in 
case  of  copyrights,  patents  and  trade-marks,  the  sub- 
stantial benefit  to  be  derived  by  the  creator  of  the 
thing  in  question  lies  in  his  having  the  exclusive 
right  to  reproduce  or  use  it. 

§  492.  Statutory  provisions. — The  constitution  of 
the  United  States  gives  power  to  congress  to  secure 
to  authors  and  inventors  the  benefit  from  their  crea- 
tions, for  a  limited  time  ;  and  congress  has  passed  acts 
for  the  purpose.  [Just  what  the  provisions  are  as  to  the 
steps  to  be  taken,  it  is  not  now  material  to  inquire. 
Whenever  the  formalities  prescribed  are  observed 
the  writer  or  inventor  has  a  monopoly  for  the  period 
provided,  and  may  have  his  remedy  against  one  who 
infringes  his  right.  He  may  procure  an  injunction, 
recover  damages  he  has  suffered,  and  recover  profits 
made  by  others. 

§  493.  Patents. — Without  entering  into  the  de- 
tails of  patent  law,  a  few  general  principles  may  be 
stated.  A  patent  is  given  for  an  invention,  namely 
something  created  by  man.  Natural  processes  and 
principles  can  not  be  patented.  The  thing  must  be 
new  and  useful.  A  new  method  of  combining 
things  to  produce  results  may  be  patented. 

Infringement  of  patents  may  consist  in    making, 
using  or  selling  the  thing  that  is   substantially  cov- 
ered by  the  patent.     The  person  infringing  may   he 
held  liable,  whether  he  knew  or  did  not  know  the 
20 


306  ELEMENTARY  LAW.  §  494 

article  was  patented.  An  exception  is  made  in  favor 
of  persons  making  or  using  the  article  for  purposes 
of  experiment  only. 

§  494.  Copyrights.— The  copyright  laws  apply  to 
printing  of  any  kind,  pictures,  music  and  statuary, 
and  confer  upon  the  author  the  exclusive  right  to 
make,  use  or  sell  copies  or  the  originals.  The  ex- 
clusive right  extends  to  the  whole  as  well  as  every 
substantial  part  of  the  thing  copyrighted.  So  that, 
if  there  is  a  copy  or  imitation  of  any  substantial 
part,  it  will  be  an  infringement.  As  to  what  is  a 
substantial  part,  the  facts  in  each  case  must  deter- 
mine. The  size  of  the  part  taken  is  not  a  decisive 
test,  for  the  true  value  may  be  in  the  small  part 
taken.  For  purposes  of  criticism,  parts  may  be 
quoted,  but  if  the  review  is  a  pretense  for  publishing 
a  substantial  copy,  it  is  an  infringement. 

Whoever  infringes  the  copyright  of  another  is 
liable,  whether  it  is  done  innocently  or  not.  The 
intent  is  in  general  immaterial. 

§  495.  Rights  independent  of  statutes.— The  mo- 
nopoly granted  under  the  copyright  statute  is  en- 
joyed by  the  author  after  publication.  Before  publi- 
cation, however,  an  author  has  legal  rights  in  the 
product  of  his  intellect,  and  these  rights  were  recog- 
nized before  the  copyright  statutes. 

At  common  law,  so  long  as  an  author  did  not  pub- 
lish his  work  to  the  world  or  abandon  it  to  the  pub- 
lic, he  retained  the  right  as  property  to  make  such 
use  of  it  as  he  saw  fit.  He  might,  without  losing 
his  right,  permit  others  to  make  a  limited  use  of  it. 
Whoever  without  the  author's  consent  used  his  work 


§496      WRONGS  TO  INCORPOREAL  PROPERTY.         307 

in  whole  or  part  was  liable  to  the  author  in  damaged 
and  could  be  enjoined. 

§  496.  Private  letters. — Where  letters  have  a  lit- 
erary value  the  writer  has  the  sole  right  to  publish 
them,  even  though  the  legal  title  to  the  paper  is  in 
the  recipient.  If  it  is  apparent  that  they  were  in- 
tended for  publication,  the  recipient  may  also  pub- 
lish them.  Any  attempt  by  others  to  publish  them 
maybe  restrained  by  injunction,  or  damages  may  be 
recovered  for  the  publication.  So  far  as  a  letter  has 
value  for  historic  purposes  the  recipient  may  use  it. 
And  all  papers  of  every  kind  may  be  used  by  any 
one  as  evidence  in  any  suit,  no  matter  what  may  be 
their  value. 

§  497.  Trade-marks  and  trade  names. — A  trade- 
mark is  a  name,  symbol  or  device  used  by  a  person 
to  designate  that  certain  goods  or  property  are  made 
by  or  used  by  him  only,  or  that  a  particular  business 
is  conducted  by  him.  The  essential  quality  of  a 
trademark  is  that  it  is  arbitrary  in  form.  If  the 
mark  is  descriptive  of  any  quality  of  the  goods  it  is 
not  valid  as  a  trade-mark.  It  is  intended  as  a  sim- 
ple and  convenient  guide  to  customers.  Whoever 
imitates  the  trade-mark  and  so  palms  off  goods  un- 
der false  colors,  commits  a  fraud  upon  the  purchaser, 
and  at  the  same  time  causes  damage  to  the  owner  of 
the  trade-mark,  both  by  the  profits  he  has  lost  and  it 
may  be  by  the  injury  to  the  reputation  of  his  goods. 
This  the  law  recognizes  as  a  substantial  damage,  and 
the  trade-mark  is  regarded  as  incorporeal  property. 
The  law  of  trade-marks  is  of  comparatively  recent 
origin,  although  the  principles  upon  which  it  rests 
have  been  long  settled  as  a  part  of  the  common  law . 


308  ELEMENTARY  LAW.  §  497 

The  remedy  for  infringement  of  trade-marks  is 
practically  the  same  as  for  infringement  of  patents, 
viz.,  damages  for  loss  of  profits,  injunction,  and  re- 
covery of  the  profits  made  by  the  infringer. 

In  the  United  States  recent  statutes  have  been 
passed  authorizing  the  registry  of  trade-marks  in 
some  cases,  and  giving  them  greater  value  as  evi- 
dence when  registered  than  when  not.  The  statutes 
are  generally  only  declaratory  of  the  common  law, 
and  all  the  remedies  that  formerly  existed  are  pre- 
served. 

Though  not  a  trade-mark  technically,  a  trade  name 
or  sign  will  receive  protection  from  the  courts  if  it  is 
not  merely  descriptive  and  contains  no  deceptive 
words  or  meaning,  and  a  rival  may  be  enjoined  from 
using  such  name  or  sign  so  as  to  cause  injury  to  the 
owner.  By  means  of  such  trade  names  what  is  called 
the  good  will  of  a  business  is  preserved  and  becomes 
a  valuable  property  right. 


CHAPTER  XXXVIII. 

WRONGS  TO  PERSONAL  PROPERTY. 

§  498.  Kinds  of  injuries.— Wrongs  that  may  be 
done  to  the  owner  of  personal  property  through 
fraud,  negligence  and  nuisance  have  been  consid- 
ered ;  as  have  also  the  wrongs  that  may  be  done  by 
mere  breach  of  contract.  There  remain  to  be  con- 
sidered wrongs : 

(1)  By  direct  force  injuring  or  disturbing  the 
owner  in  his  possession. 

(2)  By  conversion  or  depriving  the  owner  of  his 
property. 

( 3 )  By  neglect  to  restore  to  the  owner  upon  de- 
mand property  to  which  he  is  entitled. 

§  499.  Trespass  by  force. — The  first  class  of  the 
wrongs  named  is  known  as  a  trespass  by  force  or  vi  et 
ariii  is.  By  this  is  intended  only  a  direct  injury  by  the 
unlawful  forcible  disturbance  of  another  in  his  posses- 
sion of  the  property.  This  may  amount  to  a  partial 
or  complete  destruction  of  the  property.  The  wrong 
going  only  to  the  possession,  it  follows  that  one  who 
has'an  interest  in  the  property,  but  has  not  actual 
or  constructive  possession,  is  not  entitled  to  com- 
plain of  an  injury  as  a  trespass  vi  et  armis,  but  the 
injury  as  to  him  should  he  redressed  in  some  other 
form,  as  will  be  seen. 

(309) 


310  ELEMENTARY  LAW.  §  500 

500.  Possession. — The  possession  referred  to  may 
be  (1)  that  of  the  general  owner,  (2)  that  of  one 
having  a  special  property,  as  a  bailee,  mortgagee, 
etc.,  or  (3)  that  of  one  having  no  title  beyond  mere 
peaceable  possession.  The  possession  of  a  servant 
or  agent  is  in  law  the  possession  of  the  master  or 
principal,  and  need  not  be  considered  as  a  distinct 
possession. 

Possession  need  not  be  actual.  If  one  has  the 
immediate  right  to  possession,  he  has  the  general 
property  and  is  said  to  have  constructive  possession. 
He  may  maintain  an  action  for  trespass  against  any 
wrong-doer,  except  the  person  who  has  the  special 
property  and  actual  possession. 

Where  there  is  a  special  property  in  goods,  either 
the  general  or  special  owner  may  sue  a  third  person 
for  injury  to  the  goods. 

One  who  has  mere  peaceable  possession  has  suffi- 
cient possession  to  warrant  a  suit  for  trespass  against 
any  wrong-doer  except  the  owner. 

§  501.  The  force. — The  force  used  may  be  by  the 
wrong-doer  personally,  by  his  servants,  or  by  his 
animals.  It  may  be  either  express  force,  as  in  rob- 
bery, or  implied  force,  as  in  the  act  of  placing  poison 
before  animals.  The  degree  of  force  is  immaterial. 
To  cut  a  rope  tying  a  cow  would  be  a  trespass.  It 
must  moreover  appear  that  the  injury  was  proximate. 

§  502.  Conversion. — Any  distinct  act  of  dominion 
wrongfully  exerted  by  one  person  over  another's 
property,  in  denial  of  his  right,  or  inconsistent 
with  it,  is  known  as  a  conversion.  It  is  the  denial  of 
the  owner's  right  that  distinguishes  conversion  from 
trespass,  for  trespass  may  sometimes  be  committed 


§503  WRONGS  TO  PERSONAL  PROPERTY.  31 1 

even  though  the  owner's  right  to  property  and  pos- 
session he  fully  conceded.  Whether  the  act  he  for 
the  benefit  of  the  wrong-doer  or  a  third  person,  and 
whether  it  be  fur  a  temporary  purpose  or  otherwise, 
it  is  a  conversion,  if  the  dominion  of  the  owner  be 
intentionally  interfered  with.  It  follows  from  this 
that  many  wrongs  that  are  trespasses  may,  at  plaint- 
iff's option,  lie  treated  as  conversions.  Anything 
that  is  personal  property,  even  though  it  have  no 
value  except  to  the  owner,  may  be  the  subject  of  a 
conversion.  Whoever  has  the  mere  possession  of 
goods,  provided  the  possession  was  not  gained  by 
force  or  fraud,  is  entitled  to  maintain  an  action  for 
conversion  against  any  one  except  the  owner.  And 
any  one  who  has  not  the  actual  possession,  but  who 
has  the  right  to  immediate  possession,  may  main- 
tain the  action. 

§  503.  Conversion  by  persons  rightfully  in  posses- 
sion.— When  a  person  who  has  a  special  property  in 
goods,  as  a  bailee,  mortgagee,  etc.,  does  any  act  in 
excess  of  his  authority,  and  inconsistent  with  the 
rights  of  the  general  owner,  his  acts  may  be  treated 
as  a  conversion.  If  a  mortgagee  should  sell  the 
mortgaged  property,  as  his  own,  and  in  denial  of  the 
mortgage  it  would  be  a  conversion;  if  sold  subject  to 
the  terms  of  the  mortgage,  however,  it  would  not  be. 

Whoever  buys  the  property  must  ascertain  the  title. 
and  if  he  takes  possession  and  denies  the  owner's  right, 
he  is  liable  for  conversion.  The  question  of  good 
faith  is  not  involved.  All  who  participate  in  the 
conversion,  as  seller  or  buyer,  principal  or  agent, 
maybe  held  liable.  But  if  one  is  innocently  in  pos- 
session of    goods  belonging  to  another,  and,  before 


312  ELEMENTARY  LAW.  §  504 

notice  of  the  true  owner,  surrenders  them  to  the  per- 
son from  whom  he  received  them,  he  will  not  be 
liable  for  conversion.  And  if,  after  notice  of  the 
true  ownership,  he  surrenders  possession  upon  de- 
mand to  the  owner,  he  will  not  be  held  liable  either 
to  the  owner  or  the  person  from  whom  he  received 
them. 

§  504.  Demand  for  possession. — It  is  a  general 
rule  that  where  one  has  obtained  possession  of  goods 
by  force  or  fraud,  it  is  not  necessary  to  demand  pos- 
session from  the  wrong-doer  before  bringing  suit  ; 
and  when  the  possession  was  originally  rightful,  but 
there  has  been  such  abuse  or  excess  of  authority  that 
the  whole  becomes  wrongful  from  the  first,  no  de- 
mand need  be  made.  If,  however,  one  has  rightful 
possession  and  does  not  deny  the  owner's  title,  it  is 
essential  in  order  to  maintain  the  action  that  a  de- 
mand shall  have  been  made  for  possession,  and  a 
refusal  to  deliver.  Such  demand  and  refusal  need 
not  be  express  ;  they  may  be  implied  from  conduct. 
An  attempt  to  take  the  property  is  usually  a  suffi- 
cient demand,  and  opposing  the  attempt  is  a  suffi- 
cient refusal. 

§  505.  Conversion  by  tenant  in  common. — As 
each  tenant  in  common  has  a  right  to  possession  of 
the  thing  held  in  common,  there  can  not  be  a  con- 
version by  one  who  merely  withholds  possession  from 
the  other.  But  anything  that  amounts  to  a  loss  or 
destruction  of  the  property  by  fault  of  the  one  in 
possession  may  be  a  conversion.  So  it  is  generally 
held  that  a  sale  would  be.  In  some  states  it  is  held 
that  if  the  property  be  in  its  nature  divisible,  a  de- 


§506  WRONGS  TO  PERSONAL  PROPERTY.  313 

mand  by  one  owner  for  his   share   refused  by  the 
other  would  be  enough  to  establish  a  conversion. 

§  50G.  Legal  process.— Whenever  property  is  in- 
terfered with  under  color  of  legal  process,  the  person 
interfering  must  confine  himself  within  his  lawful 
powers,  and  for  any  excess  he  may  be  held  liable  as 
for  a  conversion  of  the  property. 

An  officer  of  the  law  may  without  process  take  a 
thief  together  with  the  stolen  property,  or  when  he 
arrests  a  felon  may  take  his  weapons.  But  generally, 
in  order  to  take  property  he  must  have  process. 
When  acting  under  legal  process  he  can  not  be  held 
liable  as  for  conversion,  if  the  process  be  issued  by 
a  court  having  jurisdiction,  and  be  on  its  face  with- 
out suspicious  earmarks,  and  if  he  substantially  fol- 
lows the  command  of  the  writ.  If  he  exceeds  or 
violates  the  command  of  the  writ,  as  for  instance  by 
selling  without  notice  or  injuring  the  goods,  he  may 
be  held  liable  for  the  conversion. 

A  magistrate  is  liable  for  issuing  process  if  he  acts 
knowingly  without  jurisdiction,  and  a  party  who 
knowingly  sets  a  magistrate  or  officer  in  motion  to 
act  without  authority  is  liable.  If  property  is  sold 
at  a  judicial  sale  upon  a  void  judgment  or  void  pro- 
cess, the  purchaser  may  be  liable  for  conversion. 

§  507.  Remedies. — The  remedies  permitted  bylaw 
for  injuries  done  to  personal  property  are  the  follow- 
ing : 

1.  Recaption,  i.  e.,  the  act  of  the  owner  in  retaking 
possession  without  suit.  This  he  is  permitted  to  do 
provided  he  does  not  commit  a  breach  of  the  peace, 
or  trespass  upon  the  lands  of  one  who  is  not  the 
wromi-doer. 


314  ELEMENTARY  LAW.  §  507 

2.  By  an  action  at  law.  The  forms  of  action  un- 
der which  redress  was  given  at  common  law  were : 
Trespass,  to  recover  damages  for  direct  injuries  to 
property  ;  trover,  to  recover  damages  for  the  wrongful 
taking  or  detention  of  property  ;  detinue,  to  recover 
the  possession  of  the  property  itself ;  replevin,  to  re- 
cover the  possession  as  well  as  damages  for  taking 
property.  Where  the  injury  was  indirect  or  conse- 
quential, the  action  was  in  "trespass  on  the  case." 

3.  In  some  cases  a  court  of  equity  granted  an  in- 
junction to  prevent  the  doing  or  continuance  of  in- 
jury. 

The  remedies  named  substantially  exist  in  all  the 
states  ;  the  forms  of  the  common  law  action  have, 
however,  been  more  or  less  modified  and  simplified 
by  statutes.  As  a  rule,  the  action  being  personal  re- 
dress may  be  had  wherever  jurisdiction  can  be  ac- 
quired over  the  wrong-doer,  regardless  of  the  place 
where  the  property  is  or  the  wrong  was  committed. 


CHAPTER  XXXIX. 

WRONGS    TO    REAL    PROPERTY. 

§  508.  Ownership. — The  owner  of  real  estate  is  en- 
titled to  dominion  as  against  all  the  world;  the  person 
in  possession  is  entitled  to  dominion  as  against  all 
but  the  one  havinga  better  right.  Whoever  interferes 
with  his  dominion  may  be  treated  as  a  wrong-doer. 
The  injuries  that  may  be  done  to  an  owner  as  to  his 
real  estate  may  be  1st,  by  putting  or  keeping  him 
out  of  possession  ;  2d,  by  injuring  his  land  while 
in  his  possession. 

§  509.  Dispossession. — Under  the  common  law  a 
classification  of  the  wrongs  of  dispossession  included 
some  which,  by  reason  of  changes  in  the  law,  are 
now  of  little  importance.  Abatement,  l.  e.,  where 
on  the  death  of  a  person  a  stranger  entered  before 
the  heir,  and  intrusion,  i.  e.,  where  a  stranger  en- 
tered before  a  remainderman  or  reversioner,  were 
wrongs  that  now  do  not  differ  in  legal  effect  from 
any  other  unlawful  taking  possession  of  land  in  ab- 
/  sence  of  the  owner.  The  reason  for  the  former 
classification  as  distinct  wrongs  lies  in  the  fact  that 
formerly  no  ownership  was  full  and  complete  without 
an  entry;  now,  however,  there  is  no  interval  and  the 
title  and  complete  ownership  vest  immediately.  The 
wrong  of  disseizin,  i.  e.,  entering  upon  land  and  de- 
priving the  owner  of  his  possession,  is  the  equivalent 

(315) 


316  ELEMENTARY  LAW.  §510 

of  all  wrongs  wherein  the  entry  was  wrongful  from 
the  beginning,  and  continued  to  be  so.  The  wrong 
may  be  committed  by  one  who  gains  possession  for  a 
limited  purpose  and  wrongfully  exceeds  the  author- 
ity granted,  whereby  the  entire  possession  is  held  to 
be  wrongful  from  the  beginning. 

§  510.  Unlawful  detention. — Where  the  original 
taking  possession  was  not  unlawful,  but  the  wrong 
consists  in  detaining  the  possession,  this  is  likewise 
a  dispossession  of  the  owner.  This  may  happen,  in 
case  of  a  lease  for  a  definite  term  or  during  the  life 
of  another  person,  by  the  expiration  of  the  term  or 
by  the  death  of  the  person;  the  tenant  then  holding 
over  without  right.  It  may  also  happen  in  case  of 
an  estate  upon  condition  where  the  non-performance 
of  the  condition  forfeits  the  estate,  and  the  tenant 
nevertheless  holds  the  land. 

§  511.  Remedies. — An  owner's  remedy  for  being 
deprived  of  possession  of  real  estate  may  be  by  his 
own  act  or  by  legal  process.  He  may  by  his  own  act 
enter  upon  and  take  possession  of  the  land,  provided 
he  does  not  thereby  commit  a  breach  of  the  peace. 
He  is  not  allowed  the  remedy  by  his  own  act,  if  the 
holder  of  the  land  has  an  apparent  right  to  hold  it, 
but  in  such  cases  the  owner  must  resort  to  his  rem- 
edy by  action  at  law. 

Under  the  common  law  various  forms  of  action 
were  used  for  the  recovery  of  real  estate,  but  by  judi- 
cial decision  and  legislative  enactment,  these  forms 
have  been  gradually  displaced  and  most  of  the  law  rela- 
tive to  them  is  obsolete.  Under  modern  law  the  almost 
universal  remedy  for  trying  the  title  to  lands  is  the 
action  for  possession,  and  this  has  been  so  simplified 


§512  WRONGS  TO  REAL  PROPERTY.  317 

that  it  does  not  correspond  to  the  cumbersome  forms 
that  prevailed  under  the  old  law.  Where  the  title  to 
the  land  is  not  in  question,  but  only  the  right  to  pos- 
sess it,  a  simple  and  prompt  remedy  is  generally 
provided  in  an  action  before  a  justice  of  peace  for 
possession.  An  owner  who  has  been  deprived  of 
possession  is  entitled  by  an  action  for  damages  to  re- 
cover the  profits  of  the  land  during  the  time  the 
wrong-doer  held  possession,  and  it  is  usual  to  com- 
bine the  claim  fur  damages  with  the  suit  for  possession. 

§  512.  Injuries  to  land  without  dispossession. — 
The  wrongs  to  real  estate  that  have  been  enumerated 
have  been  by  depriving  the  owner  of  possession;  it 
remains  to  consider  how  the  owner's  land  may  be 
damaged  without  affecting  his  title  or  possession. 
These  wrongs  may  be  done  (1)  by  the  tenant  in  pos- 
session to  the  damage  of  another  who  has  an  interest; 
or  (2)  by  a  stranger.  Wrongs  of  the  former  class 
are  called  waste;  of  the  latter  class,  may  be  either 
nuisance  or  trespass  by  breaking  the  close.  These 
will  be  discussed  in  order. 

§  513.  Waste. — Waste  is  the  doing  or  permitting 
lasting  damage  to  the  property  by  the  person  in  pos- 
session, to  the  injury  of  some  other  person  who  has 
an  interest  therein.  It  may  be  committed,  for  exam- 
ple, by  a  life  tenant  as  against  a  remainderman. 
The  interest  which  qualifies  one  to  complain  of  waste 
must  be  a  vested  interest. 

§  514.  Kinds  of  waste. — Waste  may  be  voluntary 
or  permissive.  Instances  of  voluntary  waste  are: 
Pulling  down  houses  in  whole  or  part,  cutting  valu- 
able timber,  removing  a  material  part  of  the  soil. 
In  general  a  tenant   is  answerable  for  waste,  even 


318  ELEMENTARY  LAW.  §515 

though  the  act  be  done  by  a  stranger,  but  he  has  his 
remedy  over  against  the  stranger.  Permissive  waste 
arises  by  negligence.  Where  the  tenant  is  under  ob- 
ligation to  keep  the  premises  in  repair,  but  negli- 
gently suffers  the  premises  to  became  ruinous,  it  is 
waste. 

§  515.  Remedies. — At  common  law  waste  worked 
the  forfeiture  of  the  estate  of  the  tenant ;  and  such 
is  still  the  law  in  some  states.  The  most  usual  forms 
of  remedy  are  the  action  for  damages  and  injunction 
to  prevent  threatened  or  continued  waste. 

§  516.  Nuisance  affecting  land. — The  nature  of 
nuisance  has  been  shown  in  the  chapter  treating  of 
that  subject.  So  far  as  relates  to  its  effect  upon  real  es- 
tate, a  nuisance  must  cause  some  material  and  sensible 
injury  to  the  property  or  its  value.  Anything  done 
upon  neighboring  property,  or  upon  highways  so  as 
to  injuriously  affect  the  property,  may  be  deemed  a 
nuisance.  To  unreasonably  occupy  the  street  in  front 
of  one's  place  of  business  and  block  the  path,  to 
carry  on  offensive  business  so  that  the  property  be- 
comes uninhabitable,  or  to  do  anything  whereby  the 
crops  or  trees  on  land  are  blighted  is  a  nuisance. 

§  517.  Remedies. — The  redress  for  nuisances  caus- 
ing damage  to  land  is  not  different  from  that  for 
other  nuisances.  The  land-owner  may  abate  the  nui- 
sance, if  he  acts  reasonably  and  without  breach  of 
the  peace.  He  may  recover  damages  and  judgment 
abating  the  nuisance,  or  he  may  have  injunction. 

§  518.  Trespass  upon  land. — In  the  wrongs  of 
nuisance  the  wrong-doer  causes  indirect  or  conse- 
quential injury  without  going  upon  the  property 
itself.     Where  the    injury  results  from  the  wrong- 


§519  WRONGS  TO  REAL  PROPERTY.  319 

doer  going  upon  the  land,  the  wrong  is  called  a  tres- 
pass by  breaking  the  close. 

The  owner,  or  the  person  in  possession  who  is  re- 
garded as  the  owner,  is  entitled  to  exclusive  domin- 
ion over  the  land.  He  may  repel  any  one  who  at- 
tempts to  infringe  his  right.  For  his  protection  the 
law  supposes  that  every  man's  land  is  inclosed, 
whether  there  actually  be  a  fence  or  not;  and  when- 
ever the  boundary  line  is  crossed  it  is  assumed  that 
the  close  is  broken  and  that  damage  has  resulted.  It 
may  be  generally  stated,  that  every  one  who  crosses 
the  land-owner's  boundary  line  is  a  trespasser  by 
breaking  the  close  unless  he  does  so  by  lawful  au- 
thority. 

§  519.  The  boundary  line. — The  boundary  of  land 
extends  perpendicularly  to  the  center  of  the  earth 
and  to  the  sky.  Technically,  an  aeronaut  would  be 
a  trespasser.  Where  the  land  is  adjacent  to  a  high- 
way, the  rule  is  generally  that  the  line  extends  to 
the  center  of  the  highway.  The  land-owner  owns 
the  soil  underlying  the  highway,  subject  only  to  the 
public  easement.  Consequently,  he  may  treat  as  a 
trespasser  one  who  violates  the  easement,  and  he 
may  recover  against  the  public  itself  if  additional 
servitude  is  imposed.  If  the  land  is  adjacent  to  a 
stream,  the  line  extends  to  the  center  of  the  stream, 
or,  if  a  fresh  water  navigable  stream  or  lake,  to  low- 
water  mark  only. 

Any  one  who  takes  trees  or  herbage  from  the  high- 
way, or  its  soil,  or  who  deposits  material  in  the  high- 
way, or  who  cuts  ice  from  a  stream,  maybe  liable  as 
a  trespasser  to  the  adjacent  land-owner. 

§  520.  Who  may  be  a  trespasser. — It  is  not  es- 
sential in  order  to  make  a  man  a  trespasser  that  the 


320  ELEMENTARY  LAW.  §  521 

whole  of  his  person  shall  cross  the  line.  If  any  part 
of  his  person  or  anything  physically  under  his  con- 
trol pass  the  line  it  is  sufficient.  So,  too,  a  man  is 
answerable  for  the  trespasses  of  his  cattle,  and  for 
the  trespasses  of  persons  acting  under  his  authority. 

521.  Lawful  authority. — An  enumeration  of  the 
cases  where  one  has  no  right  to  cross  a  land-owner's 
line  would  be  too  large  ;  the  law  can  be  more  easily 
ascertained  by  examining  the  cases  where  one  is 
justified  in  entering.  The  right  to  enter  is  in  law 
known  as  a  license.  License  may  be  given  (1st)  im- 
pliedly by  the  owner,  (2d)  expressly  by  the  owner, 
or  (3d)  by  the  law.  These  will  be  considered  in  the 
order  stated. 

§  522.  License  impliedly  given  by  the  owner. — A 
dealer  who  exposes  goods  for  sale  impliedly  author- 
izes the  public  to  enter  his  store  ;  artisans,  physi- 
cians, lawyers,  who  hold  themselves  out  as  ready  to 
serve  others,  impliedly  invite  the  public  to  enter. 
The  owner  of  an  easement  has  implied  license  to  en- 
ter and  repair  it.  And  where  a  land-owner  sells  goods 
or  is  in  wrongful  possession  of  another's  goods,  there 
is  an  implied  license  to  enter.  Whoever  holds  him- 
self out  in  any  way  to  naturally  attract  others  to 
enter  impliedly  invites  them  to  do  so.  Every  land- 
owner impliedly  licenses  his  neighbors  and  strangers 
to  enter  for  any  proper  occasion,  as  business,  social 
visits,  to  make  inquiries  and  the  like.  The  nature 
and  extent  of  this  implied  license  is  controlled  and 
measured  by  the  kind  of  premises,  the  purpose  of  the 
entry  and  the  general  custom  of  the  community. 

§  523.  Express  license  by  the  owner. — A  mere  li- 
cense exists  wherever  the  owner  grants  to  another  a 


§  524  WRONGS  TO  REAL  PROPERTY.  321 

right  to  enter,  without  giving  him  an  interest  in  the 
land.  Such  a  license  is  personal  to  the  licensee  and 
it  is  subject  to  revocation  by  the  land-owner  at  any- 
time before  it  is  acted  on.  But  when  acted  on  by  the 
licensee,  it  is  irrevocable  to.  the  extent  it  has  been 
acted  on,  though  it  may  be  revoked  as  to  the  part 
not  acted  on 

If  the  license  is  "  coupled  with  an  interest,"  as  it 
is  called,  it  can  not  be  revoked.  For  instance,  if  a 
land-owner  sell  cattle  on  his  land,  giving  the  right 
to  the  owner  to  leave  them  for  a  certain  time,  visit 
them  daily  and  take  them  away,  the  land-owner  can 
not  revoke  the  license. 

§  524.  Effect  of  statute  of  frauds. — The  rule  that 
a  license  acted  upon  becomes  irrevocable  has  been 
carried  to  the  extent  of  practically  overriding  the 
statute  of  frauds  in  one  respect.  The  statute  of 
frauds  provides  that  no  conveyance  of  land  <<r 
any  interest  therein  shall  be  valid  unless  in  writ- 
ing. Nevertheless,  it  often  happens  that  men  will 
grant  to  each  other  licenses  by  parol  to  enjoy  inter- 
ests in  each  other's  lands,  and  in  face  of  the  prohi- 
bition of  the  statute,  will  act  upon  them.  This  is  es- 
pecially noticeable  in  the  matter  of  parol  licenses  to 
overflow  land  for  mill  purposes.  By  acting  on  this 
license,  the  licensee  acquires  an  interest  in  the  over- 
flowed land,  which  the  statute  says  is  void  because 
granted  verbally.  Yet  the  injustice  of  allowing  the 
land-owner  to  revoke  his  license,  after  the  licensee 
has  incurred  great  expense  on  its  faith,  is  so  glaring 
that  courts  of  equity  will  enjoin  the  revocation. 

§  525.  License  by  law. — This  sort  of  license  is  of 
21 


322  ELEMENTARY  LAW.  §  526 

an  entirely  different  nature  from  those  that  have 
been  considered.  It  arises  not  out  of  the  consent  of 
the  owner,  either  express  or  implied,  but  on  the  con- 
trary often  exists  contrary  to  the  intent  of  the  owner. 
It  rests  upon  motives  of  public  policy  and  the  gen- 
eral welfare  of  the  community. 

For  example,  in  time  of  conflagration  or  other 
public  calamity,  officers  and  even  private  persons 
are  justified  in  entering  on  any  premises  or  into  any 
building  necessary  or  reasonably  convenient  to  check 
the  disaster;  and  they  may  do  any  damage  that  is 
reasonably  necessary  even  to  the  extent  of  a  total 
destruction. 

If  for  any  reason  a  public  highway  becomes  im- 
passable a  traveler  has  a  license  by  law  to  pass  around 
the  obstruction  by  going  over  the  adjacent  land,  and 
for  that  purpose  may  remove  a  fence. 

§  526.  Legal  process. — Officers  charged  with  the 
execution  of  legal  process  have  a  license  by  law  to 
enter  upon  land  when  necessary  to  do  so.  Ordina- 
rily the  license  extends  only  to  the  land  and  not  to 
the  dwelling-house,  which  is  regarded  as  the  castle 
of  the  owner.  But  in  case  of  felony  or  breach  of 
the  peace  the  officer  may  also  enter  the  house,  and 
if  need  be  break  open  the  door  to  effect  an  entrance. 
So,  also,  if  the  command  of  the  writ  necessarily  in- 
volves entering  the  house,  as  in  the  case  of  search 
warrants  or  writs  for  possession,  the  officer  is  entitled 
to  enter  forcibly. 

§  527.  Condemnation  proceedings. — Similar  to  en- 
try under  legal  process  is  the  entry  for  purposes  of 
condemnation.  Where  the  statute  provides  that  an 
owner's  land  may  be  taken  for  certain  public  pur- 


§  528  WRONGS  TO  REAL  PROPERTY.  323 

poses,  upon  compensation  being  made,  the  procedure 
must  be  strictly  followed,  and  any  violation  or  ex- 
cess may  be  deemed  a  trespass.  Such  statutes  usually 
provide  for  a  preliminary  survey  of  the  ground  by 
the  parties  contemplating  the  condemnation  proceed- 
ings, and  for  the  purpose  of  making  such  surveys, 
an  entry  may  be  made  without  incurring  the  liabil- 
ity for  trespass. 

§  528.  Effect  of  exceeding  the  license. — The  na- 
ture and  extent  of  the  license  being  ascertained,  the 
licensee  is  bound  to  confine  himself  within  its  limits. 
If  he  goes  beyond  he  loses  all  protection  and  is  re- 
garded as  a  trespasser  from  the  beginning.  So,  if 
one  who  pretends  to  enter  a  store  upon  the  implied 
invitation  to  look  at  wares,  should  use  the  occasion 
to  steal  or  injure,  or  if  one  enters  and  steals  during 
a  conflagration,  his  original  entry  is  a  trespass. 


CHAPTER  XL. 

COURTS  IN  GENERAL. 

§  529.  Courts  and  their  jurisdiction. — A  court  is 
a  tribunal  in  which  controversies  concerning  public 
and  private  rights  and  wrongs  are  adjudicated  ac- 
cording to  the  regular  forms  of  law.  Courts  are  the 
substitutes  which  in  civilized  societies  take  the  place 
of  private  war,  or  the  right  of  each  individual  to 
seek  the  redress  of  his  wrongs  in  his  own  way. 
Courts  are  the  creatures  of  positive  law  and  their 
jurisdiction  is  fixed  by  the  power  which  creates 
them.  The  constitution  of  the  United  States  and 
the  laws  of  congress  fix  the  jurisdiction  of  the  United 
States  courts,  and  the  constitutions  of  the  several 
states  and  of  their  respective  legislatures  fix  the 
jurisdiction  of  the  state  courts. 

§  530.  Jurisdiction  defined. — Jurisdiction  is  the 
right  of  a  court  to  hear  and  adjudicate  the  rights  of 
the  parties  in  a  case.  It  depends  on  the  character 
of  the  controversy  as  to  its  subject-matter,  or  on  the 
character  of  the  parties  to  the  controversy,  or  upon 
the  place  where  the  subject  of  the  controversy  arose. 
Jurisdiction  is  original  or  appellate.  A  court  of  origi- 
nal jurisdiction  is  one  in  which  suits  are  instituted  and 
prosecuted  to  judgment.  A  court  of  appellate  jurisdic- 
tion is  one  in  which  a  cause  once  tried  in  a  court  of 
original  jurisdiction  may  be  tried  again  on  its  merits, 

(324) 


§531  COURTS  IN  GENERAL.  325 

or  in  which  the  record  of  the  court  of  original  juris- 
diction may  be  examined  and  reviewed  to  ascertain 
if  the  adjudication  of  the  court  below  was  correct. 
Again,  jurisdiction  is  exclusive  or  concurrent.  A 
court  is  a  court  of  exclusive  original  jurisdiction 
where  the  matter  in  controversy  is  such  that  it  can 
not  be  heard  in  any  other  court.  Courts  are  said  to 
be  of  concurrent  jurisdiction  where  certain  actions 
may  be  commenced  in  one  or  the  other,  as  the  party 
bringing  the  suit  may  elect.  In  these  cases,  how- 
ever, the  court  which  first  obtains  jurisdiction  re- 
tains it  until  the  final  judgment,  to  the  exclusion  of 
all  others. 

§531.  Federal  courts.  —  The  federal  courts  con- 
sist of  the  Supreme  Court  of  the  United  States,  the 
United  States  Circuit  Courts  of  Appeals,  the  United 
States  Circuit  Courts,  the  United  States  District 
Courts,  the  Court  of  Claims,  the  Court  of  Private 
Land  Claims,  the  Territorial  Courts,  and  the  Courts 
of  the  District  of  Columbia.  The  judges  of  these 
courts  are  appointed  by  the  President,  by  and  with 
the  advice  and  consent  of  the  senate  of  the  United 
States,  and  with  the  exception  of  the  judges  of  the 
Court  of  Private  Land  Claims  and  the  Territorial 
Courts,  the}'-  hold  office  during  good  behavior.  Judges 
holding  during  good  behavior,  who  are  seventy  years 
old  and  have  served  ten  years,  may  retire  from 
office,  their  compensation  continuing  during  life. 
Such  judges  can  only  be  removed  from  office  when 
they  are  impeached  by  the  lower  house  of  congress 
for  misconduct  in  office,  and  found  guilty  by  the  sen- 
ate of  the  United  States.  No  law  can  be  passed 
which  will  deprive  such  judge  of  his  office,  nor  can 


326  ELEMENTARY  LAW.  §  532 

any  law  be  passed  which  will  diminish  his  compen- 
sation during  his  term. 

§  532.  The  senate  as  a  court. — By  the  constitution 
of  the  United  States  the  senate,  in  addition  to  its 
function  as  a  branch  of  the  legislative  department 
of  the  government,  is  charged  with  the  duty  of  hear- 
ing and  pronouncing  judgment  in  all  cases  where  a 
public  officer  is  impeached  for  misconduct  in  office 
by  the  lower  house  of  congress.  When  the  senate  is 
trying  the  president  of  the  United  States  upon  im- 
peachment, the  chief  justice  of  the  United  States 
presides  over  its  deliberations. 

§  533.  Judicial  circuits  and  districts. — The  United 
States  is  now  divided  into  nine  circuits,  correspond- 
ing to  the  number  of  the  judges  of  the  supreme  court. 
Judicial  districts  are  created  from  time  to  time  by 
congress  as  the  exigencies  of  business  require.  Each 
state  has  at  least  one  district  and  some  are  subdi- 
vided into  two  or  more. 

§  534.  Judicial  power  of  the  United  States. — The 
constitution  of  the  United  States  declares  that  the 
judicial  power  of  the  United  States  shall  extend  to 
all  cases  in  law  and  equity  arising  under  the  consti- 
tution, the  laws  of  the  United  States,  and  treaties 
made  or  which  shall  be  made  under  their  authority; 
to  all  cases  affecting  ambassadors,  other  public  min- 
isters and  consuls;  to  all  cases  of  admiralty  and 
maritime  jurisdiction;  to  controversies  to  which  the 
United  States  shall  be  a  party;  to  controversies  be- 
tween two  or  more  states,  between  a  state  and  citi- 
zens of  another  state,  between  citizens  of  different 
states,  between  citizens  of  the  same  state  claiming 
lands  under  grants  of  different  states,  and  between  a 


§  535  COURTS  IN  GENERAL.  327 

state  or  the  citizens  thereof  and  foreign  states,  citi- 
zens or  subjects. 

§  535.  Exclusive  jurisdiction  of  federal  courts. — 
The  jurisdiction  vested  in  the  federal  courts  is  ex- 
clusive of  the  courts  of  the  several  states,  in  the 
following  matters  : 

(1)  All  crimes  and  offenses  cognizable  under  the 
authority  of  the  United  States. 

( 2 )  All  suits  for  penalties  and  forfeitures  incurred 
under  the  laws  of  the  United  States. 

(3)  All  civil  causes  of  admiralty  and  maritime 
jurisdiction;  saving  to  suitors  in  all  cases  the  right 
of  a  common  law  remedy  where  the  common  law  is 
competent  to  give  it. 

(4)  All  seizures  under  the  laws  of  the  United 
States  on  land  or  on  waters  not  within  admiralty 
and  maritime  jurisdiction. 

(5)  All  cases  arising  under  the  patent-right  or 
copyright  laws  of  the  United  States. 

(G)    All  matters  and  proceedings  in  bankruptcy. 

(7)  All  controversies  of  a  civil  nature,  where  a 
state  is  a  party,  except  between  a  state  and  its  citi- 
zens, or  between  a  state  and  citizens  of  other  states, 
or  aliens. 

§  536.  Concurrent  jurisdiction  of  federal  and  state 
Courts. — Except  where  the  federal  courts  have  exclu- 
sive jurisdiction,  their  jurisdiction  is  concurrent 
witli  that  of  the  state  courts.  The  two  systems  are 
of  equal  dignity,  and  where  jurisdiction  is  concur- 
rent the  court  which  first  acquires  the  jurisdiction 
over  the  parties  or  subject-matter  is  entitled  to  retain 
it  free  from  interference. 

§  537.   Jurisdiction  of  the  supreme  court  of  the 


328  ELEMENTARY  LAW.  §  537 

United  States. — In  some  cases  the  supreme  court  has 
original  jurisdiction,  that  is  to  say  the  suit  may  be 
begun  in  the  supreme  court.  This  may  be  done  in 
all  cases  affecting  ambassadors,  other  public  minis- 
ters and  consuls,  and  all  cases  in  which  a  state  is  a 
party.  In  exercising  this  original  jurisdiction,  the 
supreme  court  causes  issues  of  fact  in  common  law 
cases  to  be  determined  by  a  jury. 

The  more  important  part  of  the  jurisdiction  of  the 
supreme  court  is  its  appellate  jurisdiction.  Before 
the  act  of  March  3,  1891,  organizing  the  circuit 
courts  of  appeals,  the  appellate  jurisdiction  of  the 
supreme  court  was  extensive.  By  that  act  its  juris- 
diction was  greatly  changed,  being  enlarged  in  some 
respects,  and  in  others  curtailed.  Its  appellate  juris- 
diction at  present  exists  in  cases  coming  to  it  in  the 
following  ways  : 

(1)  Directly  from  the  circuit  and  district  courts. 
Appeals  or  writs  of  error  may  be  taken  from  these 
courts  directly  to  the  supreme  court,  in  cases  where 
the  jurisdiction  of  the  court  is  in  issue ;  in  prize 
cases  ;  in  cases  of  conviction  of  infamous  crimes  ;  in 
cases  involving  the  construction  or  application  of 
the  federal  constitution,  or  the  constitutionality  of 
any  federal  law  or  the  validity  or  construction  of 
treaties. 

(2)  From  the  circuit  courts  of  appeals.  An  ap- 
peal or  writ  of  error  is  allowed  from  the  circuit  courts 
of  appeals  to  the  supreme  court  in  all  cases,  where 
the  matter  in  controversy  exceeds  $1,000  ;  except 
cases  in  which  jurisdiction  depends  entirely  upon 
citizenship  of  the  parties,  cases  arising  under  pat- 
ent, revenue,    and  criminal  laws  and  cases  in  ad- 


§  537  COURTS  IN  GENERAL.  329 

miralty.  As  to  the  excepted  cases  the  decisions  of 
the  circuit  court  of  appeals  are  final,  unless  that 
court  certifies  the  case  or  any  questions  therein  to 
the  supreme  court  for  its  decision.  Where  ques- 
tions of  importance  are  involved,  the  supreme  court 
may  of  its  own  motion  require  any  case  to  he  certi- 
fied to  it  by  the  circuit  court  of  appeals. 

(3)  From  the  highest  court  of  a  state.  Final 
judgments  of  the  highest  courts  of  the  states  may  be 
reviewed  in  the  supreme  court  of  the  United  States 
upon  writ  of  error,  when  such  judgment  is  adverse 
to  a  claim  or  defense  based  upon  the  constitution  or 
laws  of  the  United  States.  If  the  decision  of  the  state 
court  is  in  favor  of  the  claim  made,  the  supreme 
court  of  the  United  States  has  no  jurisdiction  to  re- 
view it. 

(4)  From  the  courts  of  the  District  of  Colum- 
bia or  the  territories.  The  judgments  of  the  su- 
preme court  of  the  District  of  Columbia  may  be  re- 
viewed by  the  supreme  court  of  the  United  States, 
where  the  matter  in  dispute  is  over  $2,500  in  value, 
and  in  some  cases  under  that  amount,  if  the  federal 
court  deem  the  question  to  be  one  of  importance. 

The  judgments  of  the  supreme  courts  of  the  terri- 
tories may  be  reviewed  by  the  supreme  court  of  the 
United  States  where  the  federal  constitution,  statutes 
or  treaties  are  brought  in  question  ;  where  the  va- 
lidity of  any  patent  or  copyright  is  in  question,  or 
where  the  matter  in  dispute  exceeds  $5,000  in  value 
and  would  have  been  appealable  if  the  judgment  had 
been  by  a  circuit  court  of  the  United  States. 

(5)  From  the  court  of  private  land  claims  and  the 
court  of  claims.     Appeals  are  allowed  from  the  court 


330  ELEMENTARY  LAW.  §  538 

of  private  land  claims  to  the  supreme  court  of  the 
United  States,  which  retries  the  whole  case  and  may 
take  additional  evidence. 

Appeals  are  allowed  from  the  court  of  claims  to 
the  supreme  court  of  the  United  States  upon  all 
judgments.  There  is  a  jurisdictional  limit  of  $3,000 
in  some  cases. 

§  538.  Jurisdiction  of  the  circuit  courts  of  ap- 
peals.— The  circuit  courts  of  appeals  were  established 
by  the  act  of  March  3,  1891,  there  being  created  one 
court  for  each  of  the  nine  circuits.  Each  court  is 
composed  of  three  judges,  who  may  be  the  justice  of 
the  supreme  court  assigned  to  that  circuit,  the  cir- 
cuit judges  or  the  district  judges  within  the  circuit. 

The  circuit  court  of  appeals  has  onty  appellate 
jurisdiction,  and  this  only  of  cases  coming  from  the 
circuit  and  district  courts  within  the  circuit,  and  of 
cases  coming  from  territorial  courts  that  may  be  as- 
signed to  the  circuit.  The  entire  appellate  jurisdic- 
tion is  divided  between  the  supreme  court  and  the 
circuit  court  of  appeals,  and  the  jurisdiction  of  the 
latter  embraces  all  the  appealable  cases  except  those 
cognizable  by  the  supreme  court  directly.  There  is 
no  jurisdictional  limit  on  account  of  the  amount  in- 
volved. The  cases  in  which  the  judgment  of  the 
circuit  court  of  appeals  is  final  has  been  shown  above. 

§  539.  Jurisdiction  of  the  circuit  courts. — For- 
merly the  circuit  courts  had  both  original  and  appel- 
late jurisdiction.  The  latter  was,  however,  wholly 
taken  away  by  the  circuit  court  of  appeals  act.  The 
original  jurisdiction,  as  given  by  the  various  statutes 
of  the  United  States,  is  as  follows : 

The  circuit  courts  of  the  United  States  have  origi- 


§  539  COURTS  IN  GENERAL.  331 

nal  cognizance,  concurrent  with  the  courts  of  the 
several  states,  of  all  suits  of  a  civil  nature,  at  com- 
mon law  or  in  equity,  where  the  matter  in  dispute 
exceeds,  exclusive  of  interest  and  costs,  the  value  of 
$2,000,  and  arising  under  the  constitution  or  laws 
of  the  United  States,  or  treaties  made,  or  which  shall 
be  made  under  their  authority,  or  in  which  contro- 
versy the  United  States  are  plaintiffs  or  petitioners,  or 
in  which  there  shall  be  a  controversy  between  citizens 
of  different  states,  in  which  the  matter  in  dispute 
exceeds,  exclusive  of  interest  and  costs,  the  value  of 
$2,000,  or  a  controversy  between  citizens  of  the  same 
state  claiming  lands  under  grants  of  different  states, 
or  in  a  controversy  between  citizens  of  a  state  and 
foreign  states,  citizens,  or  subjects,  in  which  the 
matter  in  dispute  exceeds  $2,000  in  value.  They 
have  jurisdiction  exclusive  of  the  state  courts,  of 
crimes  and  offenses  cognizable  under  the  authority 
of  the  United  States.  As  to  many  criminal  cases  the 
jurisdiction  is  concurrent  with  the  district  courts. 

The  right  to  sue  in  the  United  States  court  is  by 
various  provisions  limited  to  the  place  of  residence 
of  the  plaintiff  or  defendant,  and  by  certain  pro- 
visions relative  to  the  assignment  of  claims. 

Under  various  statutes  the  circuit  court  has  juris- 
diction of  equitable  suits  to  prevent  violations  of  the 
law  as  to  trusts,  actions  civil  and  criminal  under  the 
contract  labor  act,  actions  under  the  interstate  com- 
merce law,  proceedings  to  condemn  land  for  national 
uses,  and  proceedings  to  prevent  the  unlawful  oc- 
cupancy of  public  lands.  Irrespective  of  the  amount 
involved,  the  circuit  courts  have  jurisdiction  of  suits 
under  the  patent,  copyright  and  revenue  laws 


332  ELEMENTARY  LAW.  §  540 

§  540.  Jurisdiction  of  district  courts.— The  dis- 
trict courts  have  jurisdiction  as  follows : 

(1)  Of  all  crimes  and  offenses  cognizable  under 
the  authority  of  the  United  States,  committed  within 
their  respective  districts,  or  upon  the  high  seas,  the 
punishment  of  which  is  not  capital,  except  in  cer- 
tain cases  of  frauds  upon  the  California  surveyor- 
general's  office. 

(2)  Of  all  cases  arising  under  any  act  for  the 
punishment  of  piracy,  when  no  circuit  court  is  held 
in  the  district  of  such  court. 

( 3 )  Of  all  suits  for  penalties  and  forfeitures  in- 
curred under  any  law  of  the  United  States. 

(4)  Of  all  suits  at  common  law  brought  by  the 
United  States,  or  by  any  officer  thereof  authorized 
by  law  to  sue. 

( 5 )  Of  all  suits  in  equity  to  enforce  the  lien  of  the 
United  States  upon  any  real  estate  for  any  internal 
revenue  tax,  or  to  subject  to  the  payment  of  any  such 
tax  any  real  estate  owned  by  the  delinquent,  or  in 
which  he  has  any  right,  title  or  interest. 

(6)  Of  suits  for  the  recovery  of  certain  forfeit- 
ures or  damages  due  to  the  United  States. 

( 7 )  Of  causes  of  actions  arising  under  the  postal 
laws  of  the  United  States. 

(8)  Of  civil  causes  of  admiralty  and  maritime  ju- 
risdiction, saving  to  suitors  in  all  cases  the  right  of 
a  common  law  remedy,  where  the  common  law  is 
competent  to  give  it ;  and  of  all  seizures  on  land  and 
on  waters  not  within  admiralty  and  maritime  juris- 
diction. 

(9)  Of  prizes  brought  into  the  United  States. 

(10)  Of  suits  by  the  assignee  of  any  debenture  for 


§  540  COURTS  IN  GENERAL.  333 

drawback  of  duties,  issued  under  any  law  for  the  col- 
lection of  duties  against  the  person  to  whom  such 
debenture  was  originally  granted,  or  against  any 
indorser  thereof  to  recover  the  amount  of  such 
debenture. 

(11)  Of  suits  authorized  by  law  to  be  brought  by 
any  person  for  the  recovery  of  damages  on  account  of 
any  injury  to  his  person  or  property,  or  of  the  depri- 
vation of  any  right  or  privilege  of  a  citizen  of  the 
United  States  by  any  act  done  in  furtherance  of  any 
conspiracy  relative  to  civil  rights. 

(12)  Of  all  suits  at  law  or  in  equity  authorized  by 
law  to  be  brought  by  any  person  to  redress  the  depri- 
vation under  color  of  any  law,  ordinance,  regulation, 
custom  or  usage  of  any  state,  of  any  right,  privi- 
lege or  immunity  secured  by  the  constitution  of  the 
United  States,  or  of  any  right  secured  by  any  law 
of  the  United  States  to  persons  within  the  jurisdic- 
tion thereof. 

( 13 )  Of  all  suits  to  recover  possession  of  any  office, 
except  that  of  elector  of  president  or  vice-president, 
representative  or  delegate  in  congress,  or  member  of 
a  state  legislature,  authorized  by  law  to  be  brought, 
wherein  it  appears  that  the  sole  question  touching 
the  title  to  such  office  arises  out  of  the  denial  of  the 
right  to  vote  to  any  citizen  offering  to  vote,  on  ac- 
count of  race,  color  or  previous  condition  of  servi- 
tude ;  provided,  that  such  jurisdiction  shall  extend 
only  so  far  as  to  determine  the  rights  of  the  parties 
to  such  office  by  reason  of  the  denial  of  the  right 
guaranteed  by  the  constitution  of  the  United  States 
and  secured  by  any  law  to  enforce  the  rights  of  citi- 
zens of  the  United  States  to  vote  in  all  of  the  states. 


334  ELEMENTARY  LAW.  §  541 

( 14 )  Of  all  proceedings  by  the  writ  of  quo  warranto, 
prosecuted  by  any  district  attorney,  for  the  removal 
from  office  of  any  person  holding  office,  except  as  a 
member  of  congress,  or  of  a  state  legislature,  con- 
trary to  the  provisions  of  the  third  section  of  the 
fourteenth  article  of  amendment  of  the  constitution 
of  the  United  States. 

(15)  Of  all  suits  by  or  against  any  association  es- 
tablished under  any  law  providing  for  national  bank- 
ing associations  within  the  district  for  which  the 
court  is  held.      [Repealed  July  12,  1882.] 

(16)  Of  all  suits  brought  by  any  alien,  for  a  tort 
only  in  violation  of  the  law  of  nations,  or  of  a  treaty 
of  the  United  States. 

(17)  Of  certain  suits  against  consuls  or  vice-con- 
suls. 

(18)  The  district  courts  are  constituted  courts  of 
bankruptcy,  and  have  in  their  respective  districts 
original  jurisdiction  in  all  matters  and  proceedings  in 
bankruptcy. 

The  district  court  has  also  concurrent  jurisdiction 
of  some  matters  cognizable  in  the  court  of  claims. 

§  541.  Jurisdiction  of  the  court  of  claims. — This 
court  was  established  for  the  purpose  of  regularly 
investigating  claims  against  the  government,  and 
thereby  relieving  and  protecting  congress.  It  is  com- 
posed of  five  judges,  who  sit  at  Washington. 

The  court  is  required  to  hear  and  determine,  (1) 
all  claims  founded  upon  the  constitution  of  the  United 
States,  or  any  law  of  congress  except  for  pensions,  or 
upon  any  regulation  of  an  executive  department; 
(2)  all  claims  upon  any  contract,  express  or  implied, 
with  the  government,  or  for  damages  in  cases  not 


§  542  COURTS  IN  GENERAL.  335 

sounding  in  tort,  in  respect  of  which  claims  the  party 
would  be  entitled  to  redress  if  the  United  States  were 
suable,  except  war  claims;  (3)  all  counter  demands 
of  the  government  against  any  such  claimant;  (4) 
petition  for  adjustment  of  accounts  by  debtors  of  the 
United  States;  (5)  certain  questions  that  may  be 
submitted  by  heads  of  departments,  to  obtain  a  prec- 
edent for  their  guidance.  It  also  has  jurisdiction  in 
a  number  of  minor  matters  not  of  general  interest. 

§  542.  Jurisdiction  of  the  court  of  private  land 
claims. — This  court  was  established  in  1891  for  the 
settlement  of  private  titles  to  lands  claimed  under 
Spanish  or  Mexican  grants.  It  is  composed  of  five 
judges  and  sits  in  the  western  states  and  territories 
in  which  the  lands  lie.  By  the  act  establishing  it 
the  court  ceases  to  exist  Dec.  31,  1895.  The  details 
of  its  jurisdiction  are  not  of  general  interest. 

§  543.  United  States  commissioners. — As  auxil- 
iaries to  the  courts,  United  States  commissioners  are 
appointed  by  the  judges  of  the  circuits,  and  act  as 
examining  magistrates  in  hearing  charges  for  viola- 
tion of  the  laws  of  the  United  States,  and  where  a 
probable  case  of  guilt  is  made  out  the}'  admit  the  ac- 
cused to  bail  for  his  appearance  before  the  court 
having  jurisdiction  of  the  offense,  or  if  the  offense  is 
not  bailable  commit  the  accused  to  prison.  These 
commissioners  have  no  jurisdiction  to  pronoumv 
final  judgment  in  any  case. 

§  544.  Courts  of  the  territories  and  of  the  District 
of  Columbia. — These  are  not  strictly  a  part  of  the  fed- 
eral judicial  system.  The  provisions  of  the  consti- 
tution relative  to  courts  of  the  United  States  do  not 
refer  to  courts  of  the  territories.     Upon  admission  of 


336  ELEMENTARY  LAW.  §  545 

a  territory  to  the  Union  as  a  state,  it  is  the  state 
courts  and  not  the  federal  courts  that  are  the  suc- 
cessors of  the  territorial  courts.  The  jurisdiction  of 
these  courts  is  a  matter  of  special  interest  only  in  the 
locality  of  the  courts. 

§  545.  State  courts. — The  organization  and  juris- 
diction of  the  state  courts  are  matters  within  the  ex- 
clusive province  of  the  legislatures  of  the  several 
states,  and  it  would  be  out  of  place  here  to  attempt  to 
consider  the  subject  in  detail.  There  are,  however, 
some  general  features  of  the  American  state  courts 
which  are  common  to  nearly  all  of  them,  and  which 
should  be  noticed  in  outline  at  least.  Some  of  these 
courts  are  of  limited  and  inferior  jurisdiction,  and 
some  are  courts  of  general  and  superior  jurisdiction. 

§  546.  Jurisdiction  of  state  courts. — Courts  held 
by  justices  of  the  peace,  mayors  and  police  judges 
are  courts  of  inferior  and  limited  jurisdiction.  In 
some  civil  matters  involving  small  interests,  in  petty 
misdemeanors,  the  judgments  of  these  courts  are 
final,  but  where  the  matters  involved  are  more  im- 
portant appeals  lie  from  their  judgments.  These 
courts  also  have  power  to  issue  warrants  for  the  ar- 
rest of  offenders  of  the  higher  grades,  and  after  ex- 
amination to  discharge,  admit  them  to  bail,  or  where 
the  crime  is  not  bailable  to  commit  them  to  jail  to 
abide  the  finding  of  the  grand  jury,  or  the  judgment 
of  the  court  having  final  jurisdiction.  In  some  of 
the  states  the  courts  of  superior  jurisdiction  are  di- 
vided and  classified  as  chancery  courts,  common 
law  courts  (including  civil  and  criminal  courts)  and 
probate  courts,  each  having  jurisdiction  over  such 
subjects  as  are  implied  by  their  names. 


§;,17  COURTS  IN  GENERAL.  337 

§  547.  In  most  of  the  stales  codes  have  beeD 
adopted  by  which  the  distinctions  in  the  forms  of 
equity  and  common  law  pleadings  have  been  abolished 
and  one  form  of  action  is  substituted  under  which  all 
rights  legal  and  equitable  may  be  enforced.  In  a 
few  of  the  states  the  old  distinction  between  proceed- 
ings in  equity  and  at  law  are  still  maintained.  To 
ascertain  the  scope  and  limits  of  the  jurisdiction  of 
these  state  courts,  recourse  must  be  had  to  the  laws 
creating  them. 


22 


CHAPTER  XLI. 

CIVIL    PROCEDURE. 

We  will  now  consider  the  order  in  which  civil  ac- 
tions are  commenced  and  prosecuted  to  final  judg- 
ment. Owing  to  the  diversity  of  legislation  in  the 
code  states  and  the  practice  that  has  grown  up  in 
these  states  under  the  rulings  of  the  courts,  it  is 
manifestly  impossible  in  our  limited  space  to  give 
the  order  and  rules  of  proceeding  and  practice  in  all 
the  states,  and  we  shall  content  ourselves  With  some 
general  statements  which  will  apply  to  most  if  not 
all  of  them. 

§548.  Civil  actions — Courts  —  Their  officers  — 
Juries. — An  action  is  a  proceeding  in  a  court  by  a 
plaintiff  against  a  defendant,  to  establish  a  right  or 
to  obtain  a  remedy.  In  every  court  there  must  be  a 
judge,  whose  duty  it  is  to  preside  and  direct  the  pro- 
ceedings of  the  court  and  to  decide  such  matters  of  law 
or  fact  as  may  be  submitted  to  him;  a  clerk,  whose 
duty  it  is  to  keep  a  faithful  minute  and  record  of  all 
the  proceedings  of  the  court  and  to  perform  such 
other  duties  as  the  law  and  rules  of  practice  may  re- 
quire; a  sheriff,  who  is  to  maintain  order  in  the  court, 
to  obey  the  orders  of  the  judge  and  to  serve  the  pro- 
cess of  the  court.  It  is  the  duty  of  the  jury,  under 
the  directions  of  the  court  as  to  matters  of  law,  to 
decide  the  questions  of  fact  submitted  to  them,  and 

(33S) 


§549  CIVIL  PEOCEDUEE.  339 

to  put  their  decision  in  the  form  of  a  verdict,  to 
which  they  unanimously  agree. 

§549.  Actions,  how  commenced  —  Parties. — In 
every  action  there  must  be  two  adversary  parties  and 
a  real  controversy.  Courts  are  not  organized  for  the 
purpose  of  deciding  abstract  questions  of  law  unless 
it  is  necessary  to  establish  the  substantial  rights  of 
the  parties  to  the  action.  To  begin  and  prosecute  a 
fictitious  proceeding  in  a  court  is  a  contempt  of  court. 
The  plaintiff  begins  his  suit  by  riling  in  the  proper 
court  a  statement  in  writing  showing  the  facts  upon 
which  he  bases  his  claim  for  redress.  This  is  called 
a  declaration,  complaint,  petition,  or  bill. 

§  550.  The  process. — The  clerk  issues  a  writ  bear- 
ing the  seal  of  the  court  and  attested  by  the  clerk, 
which  is  delivered  to  the  sheriff  for  service  upon  the 
defendant  who  is  named  in  the  writ.  The  writ  or 
summons  requires  the  defendant  to  appear  and  plead 
to  the  action  by  a  day  specified,  and  must  be  served 
as  required  by  law,  either  by  reading  it  to  the  de- 
fendant in  person,  by  leaving  a  cop}'  of  it  at  his 
usual  place  of  residence,  or  by  leaving  a  copy  at 
some  other  place  designated  by  law.  Sometimes  the 
form  of  the  action  is  such  that  the  writ  issued  re- 
quires the  sheriff  to  seize  the  person  of  the  defendant 
or  goods  in  his  possession.  And  in  cases  of  foreign 
attachment  the  goods  of  a  defendant  may  be  seized 
in  a  state  where  he  is  not  a  resident  to  satisfy  plaint- 
iff's claim.  In  actions  where  the  defendant  can  not 
be  served  with  process,  and  the  court  has  jurisdiction 
of  the  subject-matter  of  the  controversy,  constructive 
notice  is  given  by  publication  in  r„  newspaper,  or  serv- 
ice of    summons  may  be  made  upon  defendant   in 


340  ELEMENTARY  LAW.  §  551 

another  state,  when  the  statute  allows  it.  But  in 
cases  where  constructive  notice  alone  is  given,  the 
judgment  of  the  court  is  binding  upon  the  defendant 
only  so  far  as  it  relates  to  the  property  within  the 
jurisdiction  of  the  court. 

§  551.  How  served  and  returned.— If  the  sheriff 
finds  the  defendant,  it  is  his  duty  to  serve  the  pro- 
cess, to  indorse  upon  it  the  time  and  manner  of  serv- 
ice, and  to  return  and  file  it  with  the  clerk  who  issued 
it.  The  defendant  may  not  wish  to  contest  the  action, 
in  which  case  he  fails  to  appear  in  court,  and  judg- 
ment is  taken  against  him  by  default.  If  he  wishes 
to  defend  he  must  enter  his  appearance  and  file  his 
defense  according  to  the  rules  of  practice  of  the  court 
where  the  action  is  pending. 

§  552.  Matters  of  defense.— If  a  defendant  denies 
the  right  of  the  court  to  hear  the  controversy,  he  ob- 
jects to  the  jurisdiction.  If  the  court  has  jurisdic- 
tion and  the  suit  is  properly  brought,  the  defendant 
may  be  willing  to  admit  that  the  facts  stated  in 
plaintiff's  complaint  are  true,  but  may  insist  that  they 
are  not  sufficient  in  law  to  entitle  the  plaintiff  to  the 
redress  he  seeks;  in  such  case  he  files  a  pleading 
called  a  demurrer,  and  if  the  court  sustains  the  posi- 
tion of  the  defendant,  judgment  is  given  against  the 
plaintiff,whohasthe  option  to  amend  his  faulty  plead- 
ing, or  to  appeal  from  the  judgment.  In  the  same  way 
a  demurrer  may  be  interposed  to  a  defective  answer  or 
reply,  if  it  does  not  in  the  opinion  of  plaintiff  state 
facts  sufficient  to  constitute  a  good  defense  or  reply. 
A  demurrer  raises  what  is  called  an  issue  of  law.  A 
pleading  which  denies  the  allegations  of  another 
pleading  raises  an  issue  of  fact.     An  answer  which 


§553  CIVIL  PROCEDURE.  :] ;  1 

admits  the  sufficiency  of  the  complaint,  but  all 
new  matter  which  makes  a  good  defense  to  plaintiff's 
claim,  is  called  an  answer  in  confession  and  avoid- 
ance. 

§  553.  Objection  to  jurisdiction,  how  and  when 
made. — A  defendant  who  wishes  to  object  to  the  juris- 
diction of  the  court  over  the  parties  to  the  suit  must 
enter  a  special  appearance  for  that  purpose.  If  he 
enters  his  appearance  generally,  he  waives  his  right  to 
make  such  a  plea.  But  if  the  court  has  no  jurisdic- 
tion over  the  subject-matter,  all  proceedings  in  regard 
to  it  are  void.  If  a  defendant  is  sued  in  one  juris- 
diction, when  he  has  a  right  to  demand  that  he  should 
be  sued  in  another,  he  can  give  the  court  jurisdiction 
by  appearing  to  the  action  or  by  failing  to  plead  to  the 
jurisdiction.  If  one  court  should  proceed  to  try  an 
action  in  relation  to  a  matter,  the  jurisdiction  of 
which  b}'  law  belongs  exclusively  to  another  court, 
all  its  proceedings  would  be  void.  If  the  facts  show- 
ing want  of  jurisdiction  appear  upon  the  face  of 
plaintiff's  complaint,  the  court  will  dismiss  the  ac- 
tion upon  the  motion  of  the  defendant.  If  the  facts 
do  not  so  appear  they  must  be  brought  to  the  atten- 
tion of  the  court  by  a  special  plea  to  the  jurisdiction. 

§  554.  Answers  or  pleas  in  abatement. — A  defend- 
ant may  file  an  answer  in  abatement,  and  this  may 
be  based  on  defects  in  the  process,  defects  in  the 
service  of  process,  incapacit}7  of  plaintiff  to  sue,  in- 
capacity of  the  defendant  to  be  sued,  misdescri: 
of  the  parties,  plaintiff  or  defendant,  misjoinder  of 
parties,  non-joinder  of  parties,  another  action  pend- 
ing for  the  same  cause  between  the  same  pari 
Some  of  these  defects  may  be  brought  to  the  atten- 


342  ELEMENTARY  LAW.  §  555 

tion  of  the  court  by  demurrer  or  motion,  according 
to  the  practice  of  the  court  where  the  action  is  pend- 
ing. It  will  be  seen  that  none  of  the  defects  above 
named  go  to  the  merits  of  the  controversy,  and  most 
of  them  may  be  cured  by  amendment.  An  answer 
in  abatement  is  a  dilatory  answer,  and  ordinarily  it 
must  be  filed  and  disposed  of  before  the  case  is  tried 
on  its  merits. 

§  555.  Issues  of  fact  and  issues  of  law. — When 
the  parties  are  at  issue  upon  a  question  of  law  alone, 
the  judge  decides  it.  An  issue  of  fact  is  submitted 
to  a  jury,  unless  the  parties  waive  a  jury  and  consent 
to  a  trial  by  the  court. 

§  556 .  The  jury. — A  jury  is  a  body  usually  of  twelve 
men  summoned  from  the  residents  or  citizens  of  the 
county  where  the  case  is  tried  who  are  impaneled  and 
sworn  to  try  the  issues  in  the  case  and  to  render  a 
true  verdict  according  to  the  law  and  the  evidence. 
What  is  called  the  regular  venire  is  a  body  of  men 
summoned  to  serve  as  jurors  generally  during  all  or 
a  portion  of  the  term  of  court.  A  special  venire  is 
a  body  of  men  selected  and  summoned  to  try  a  par- 
ticular case.  When  a  regular  or  special  venire  is 
exhausted  by  challenges  or  other  cause,  without  se- 
curing the  requisite  number,  a  new  venire  is  issued 
or  the  number  is  made  up  from  bystanders  who 
have  the  requisite  qualifications  to  serve  as  jurors. 
Before  the  jurors  are  sworn  to  try  the  case,  either 
party  may  object  to  them  as  a  body  or  to  the  jurors 
individually.  The  first  objection  may  be  based  upon 
an  irregularity  or  defect  in  the  manner  of  making  up 
or  serving  the  venire,  or  the  misconduct  or  partiality 
of  the  sheriff  by  whom  it  is  served.     The  second  ob- 


$557  CIVIL  PROCEDURE.  343 

jection  is  based  upon  the  legal  disqualification  of  the 
jurors   objected  to,  or   on  account   of  their   bias   in 
favor  of  one  of   the   parties.     The  first  objection  is 
called  a  challenge  to  the  array,  the  second  is  called 
a    challenge  to  the    polls.     There  are   two  kinds  of 
challenges   to    the    polls.     Where    the  ground  of   a 
challenge  is  the  bias  of  the  juror  it  is  a  challenge 
for  cause.     Where  the  challenge  is  without  cause  it 
is  a  peremptory  challenge.    The  right  to  use  the  per- 
emptory challenge  in  civil  cases  is  limited  to  a  small 
number,   usually  two  or    three.     The   right   to    the 
challenge  for  cause  is  without  limit  as  to  number,  it 
being  essential  that  all  of  the  twelve  jurors  should  be 
able  to  hear  and  decide  the  case  without  partiality  or 
bias. 

§  557.  Trial. — The  jury  being  impaneled  and  sworn 
to  try  the  case,  the  counsel  of  the  parties  read 
the  pleadings  or  state  the  substance  of  them  to 
the  jury,  together  with  a  summary  of  the  evidence 
which  they  expect  to  produce  in  support  of  the  issues. 
§  558.  Evidence. — Evidence  includes  all  the  means 
by  which  an  alleged  matter  of  fact,  the  truth  of 
which  is  submitted,  to  investigation,  is  established  or 
disproved.  Proof  is  the  effect  of  evidence.  Evi- 
dence consists  of  statements  made  by  witnesses  under 
oath  in  relation  to  matters  of  fact  under  inquiry,  and 
of  documents  produced  for  the  inspection  of  the  jury 
and  court.  There  are  three  degrees  or  kinds  of  evi- 
dence, viz.,  conclusive,  prima  facie,  and  evidence 
tending  to  prove.  Conclusive  evidence  is  such  as 
when  produced  excludes  all  evidence  to  the  contrary. 
Prima  facie  evidence  is  such  as  in  the  absence  of  evi- 
dence to  the  contrary  is    sufficient  to  establish  the 


344  ELEMENTARY  LAW.  §  558 

existence  of  a  fact.  Evidence  tending  to  prove  a 
fact  is  any  competent  evidence  which  tends  to  estab- 
lish the  existence  of  a  fact  in  issue.  Competent  evi- 
dence is  that  which  the  very  nature  of  the  thing  to 
be  proved  requires,  and  is  the  best  evidence  that  the 
nature  of  the  case  admits  of.  If  the  question  is  as 
to  the  contents  of  a  written  instrument,  the  instru- 
ment itself  is  the  best  evidence.  If  the  instrument 
be  lost  or  destroyed  or  beyond  the  jurisdiction  of  the 
court,  oral  testimony  as  to  its  contents  may  be  given, 
and  in  such  case  it  is  competent,  being  the  best  that 
the  nature  of  the  case  admits  of.  Sufficient  or  satis- 
factory evidence  is  such  as  will  reasonably  satisfy  an 
unprejudiced  mind  of  the  existence  of  a  fact.  Cor- 
roborative evidence  is  additional  evidence  of  the  same 
character  to  support  the  same  point  as  other  evi- 
dence already  given,  and  it  may  be  a  repetition  of 
evidence  given  as  to  a  fact,  or  evidence  of  another 
fact  which  makes  the  existence  of  the  fact  already 
testified  to  more  probable.  Cumulative  evidence 
means  more  of  the  same  kind  of  evidence  and  to  the 
same  point,  and  is  a  species  of  corroborative  evidence. 
Relevant  evidence  is  such  as  directly  touches  upon 
the  issue  the  parties  have  made  in  their  pleadings  so 
as  to  assist  in  getting  at  the  truth.  Evidence  is 
sometimes  designated  as  "  admissible,"  "proper," 
or  "  material,"  but  the  terms  competent  and  rele- 
vant comprehend  them  all.  Direct  evidence  is 
such  as  is  given  by  persons  who  testify  from  per- 
sonal knowledge  of  the  facts.  Indirect  or  circum- 
stantial evidence  consists  of  a  fact  or  group  of  facts 
testified  to  by  persons  having  a  personal  knowledge 


§  559  CIVIL  PROCEDURE.  345 

of  them,  from  which  the  existence  of  another  fact  or 
facts  may  he  inferred. 

§  559.  Functions  of  court  and  jury  as  to  evidence. 
— Questions  as  to  the  competency  and  relevancy  of 
evidence  are  decided  by  the  court.  The  weight  of 
the  evidence,  or  what  it  proves,  is  a  question  for  the 
jury. 

§  500.  Things  which  need  not  be  proved,  or  of 
which  courts  take  judicial  notice. — There  is  a  clasa 
of  facts  which  need  not  be  proved,  and  which  are 
presumed  to  be  known  to  the  judge  and  jury.  They 
are  facts  of  which  courts  take  judicial  notice,  as  of 
the  existence  of  nations,  of  national  flags  and  seals, 
of  the  titles  of  sovereigns  or  rulers,  of  public  acts, 
decrees  and  judgments  certified  under  the  seal  of  for- 
eign nations,  of  the  public  laws  of  the  state  in  which 
the  court  is  held,  of  the  usages  of  commercial  busi- 
ness, of  the  genuineness  of  a  notary's  seal,  of  the 
geographical  boundaries  of  states  and  nations,  of  the 
distances  of  cities  and  towns  from  one  another.  In 
short,  the  court  will  take  judicial  notice  of  what 
ought  to  be  generally  known  within  the  limits  of 
their  jurisdiction,  and  if  the  memory  of  the  judge  is 
at  fault,  he  may  resort  to  books,  maps,  or  other  doc- 
uments to  refresh  his  memory. 

§  561.  Written  and  oral  evidence. —  Evidence  is 
written  or  oral.  Written  evidence  consists  of  all 
written  agreements,  instruments,  records,  public  or 
private,  the  production  and  contents  of  which  tend 
to  establish  or  disprove  any  material  fact  in  issue. 
Oral  evidence  consists  of  the  viva  voce  statements 
made  by  witnesses  in  open  court  under  oath.  Oral 
evidence  is  allowed  where  it  relates  to  facts  observed 


346  ELEMENTARY  LAW.  §  562 

by  the  witness,  or  in  case  of  experts  to  matters  of 
opinion.  A  deposition  is  the  oral  evidence  of  a  wit- 
ness who  can  not  be  produced  at  the  trial,  which  has 
been  reduced  to  writing  by  some  competent  person, 
in  the  presence  of  the  parties.  It  is  in  the  form  of 
questions  and  answers.  When  properly  taken  upon 
due  notice,  and  filed  in  court,  it  may  be  read  to  the 
jury. 

§  562.  Attendance  of  witnesses,  how  procured. — 
The  attendance  of  witnesses  within  the  jurisdiction 
of  the  court  is  procured  by  the  issuing  and  service 
upon  the  witness  of  a  writ  which  is  called  a  subpoena. 
This  requires  him  to  appear  in  court  upon  a  day 
named  and  to  remain  in  attendance  until  discharged 
by  the  court.  The  subpoena  is  usually  served  by  the 
sheriff,  by  reading  it  to  the  witness  in  person  or  by 
leaving  a  copy  for  him  at  his  residence.  When  served 
the  officer  returns  the  subpoena  to  the  clerk  with  his 
indorsement  thereon  showing  the  time  and  manner 
of  service.  If,  in  addition  to  the  testimony  of  the 
witness,  the  party  calling  him  wishes  him  to  pro- 
duce at  the  trial  any  document  in  his  possession, 
there  is  a  clause  inserted  in  the  subpoena  requiring 
him  to  bring  with  him  the  document  named,  giving 
a  particular  description  of  it,  so  that  the  witness  may 
know  precisely  what  is  wanted.  Such  a  subpoena  is 
called  a  subpoena  duces  tecum.  If  a  witness  refuses 
to  obey  a  subpoena,  an  attachment  will  be  issued 
against  him,  and  in  a  proper  case  he  will  be  punished 
for  a  contempt  of  court. 

§  563.  Competency  of  witnesses. — Before  the  en- 
actment of  recent  statutes  on  the  subject,  many  per- 
sons who  are  now  competent  witnesses  were  held  to 


§  564  CIVIL  PROCEDURE.  347 

be  incompetent,  on  account  of  their  interest  in  the 
result  of  the  suit,  their  relation  to  the  parties  and 
upon  other  grounds  not  necessary  to  be  enunier: 
By  the  law  of  most  if  not  all  of  the  states,  these 
objections  which  formerly  went  to  the  competency  of 
the  witness  now  go  to  his  credibility.  There  still  re- 
mains a  rule  which  is  almost  universal  which  ex- 
cludes from  the  consideration  of  the  court  and  jury 
what  are  called  privileged  communications.  These  are 
communications  between  priest  and  penitent,  hus- 
band and  wife,  physician  and  patient,  attorney  and 
client.  Secrets  of  state  are  also  privileged,  and  a 
witness  can  not  be  compelled  to  testify  to  any  fact 
which  would  tend  to  expose  him  to  prosecution  for 
crime. 

§  564.  Hearsay  evidence. — Hearsay  evidence  is 
what  a  witness  says  he  heard  somebody  else  say,  and 
such  evidence  is  generally  excluded.  The  reasons 
for  the  rule  are  obvious.  To  allow  such  evidence 
would  enable  the  party  producing  it  to  get  before  the 
jury  the  statements  of  persons  who  were  not  testify- 
ing under  the  sanction  of  an  oath,  and  were  not  sub- 
jected to  cross-examination.  There  is  the  danger 
also  that  the  witness  testifying  to  the  statement  may 
not  have  heard  all  of  it,  or  may  have  remembered  it 
imperfectly.  It  is  a  weak  sort  of  evidence  at  best, 
and  to  admit  it  would  be  to  furnish  strong  tempta- 
tions to  impose  upon  the  court  and  jury  false  and 
fabricated  evidence. 

§  565.  Exceptions  to  the  rule  excluding  hearsay 
evidence. — There  are,  however,  some  declarations 
that  in  strictness  might  be  called  hearsay,  which  are 
admissible  in  evidence. 


348  ELEMENTARY  LAW.  §  566 

(1)  Where  the  fact  that  the  declaration  was  made 
and  not  its  truth  or  falsity  is  the  point  in  question. 

(2)  Expressions  of  bodily  or  mental  feelings  where 
the  existence  of  such  feelings  is  the  subject  of  in- 
quiry. 

(3)  In  cases  of  disputed  pedigree,  the  declarations 
of  the  members  of  the  family  asserting  kinship,  en- 
tries in  the  family  bible,  inscriptions  on  mural  tab- 
lets or  tombstones  are  admissible. 

(4)  Declarations  accompanying  an  act  and  which 
tend  to  show  the  intent,  or  any  statement  made  at 
the  time  and  forming  a  real  part  of  the  transaction. 

( 5 )  Dying  declarations  of  the  victim  of  a  homicide, 
made  under  the  apprehension  of  death,  concerning 
the  identity  of  the  slayer  and  the  circumstances  of 
the  killing. 

(6)  Where  a  statement  is  made  by  a  witness  out 
of  court  inconsistent  with  his  testimony  in  court  it 
can  be  proved  to  impeach  his  veracity. 

(7)  Where  the  statement  is  made  by  a  party  to  the 
suit,  or  by  his  authorized  agent,  in  relation  to  the 
matter  in  controversy. 

§  566.  Examination  of  witnesses. — The  order  of 
the  examination  of  witnesses  is  as  follows :  First, 
the  direct  examination  by  the  counsel  of  the  party 
calling  the  witness;  second,  the  cross-examination 
by  the  counsel  of  the  opposite  party  ;  and,  third,  the. 
re-direct  examination  by  the  counsel  of  the  party 
calling  the  witness.  As  a  general  rule  leading  ques- 
tions, or  questions  which  suggest  the  desired  answer, 
can  not  be  asked  of  a  party's  own  witness.  A  wit- 
ness who  surprises  the  party  who  calls  him  by  giving 
adverse  evidence  may  be  asked  leading  questions  on 


§  567  CIVIL  PROCEDURE.  349 

his  direct  examination,  and  the  same  privilege  is 
allowed  to  a  party  who  is  compelled  to  call  a  witness 
who  is  hostile  to  him.  On  cross-examination  lead- 
ing questions  are  allowed.  A  witness  may  refresh 
his  memory  while  testifying  by  referring  to  a  written 
memorandum,  but  if  he  does  so  the  opposite  party 
has  a  right  to  inspect  the  memorandum  and  cross- 
examine  the  witness  in  relation  thereto. 

§  567.  Burden  of  proof. — The  burden  of  proof  in 
civil  cases  rests  upon  the  party  making  an  allegation, 
and  the  plaintiff  must  establish  his  right  to  a  ver- 
dict by  producing  a  preponderance  of  the  evidence. 
Where  the  defendant  makes  an  affirmative  defense, 
the  burden  of  proving  it  rests  upon  him.  This  burden 
is  sometimes  shifted  from  one  party  to  the  other. 

§  568.  Arguments  of  counsel  and  instructions  of 
the  court. — When  the  evidence  is  closed  counsel  ad- 
dress the  jury  in  the  order  in  which  the  evidence  was 
produced,  the  party  upon  whom  the  burden  of  proof 
rests  having  the  right  to  open  and  close  the  argu- 
ment. After  the  arguments  are  made,  the  judge  in- 
structs the  jury  in  the  rules  of  law  which  are  appli- 
cable to  the  facts  proved.  Counsel  have  a  right  to 
request  the  court  to  give  specific  instructions,  and  if 
they  state  the  law  and  are  applicable  to  the  case,  it  is 
the  duty  of  the  judge  to  give  them.  A  refusal  to 
give  them,  or  the  giving  of  erroneous  instructions, 
furnish  grounds  for  a  new  trial  to  the  party  injured 
by  them. 

§569.  Deliberations  of  jury  and  verdict. — After 
the  instructions  are  given  the  jury  are  conducted  to 
a  room  where  they  are  kept  in  charge  of  an  officer  of 
the  court  until  they  have  unanimously  agreed  upon 


350  ELEMENTARY  LAW.  §  570 

a  verdict.  A  verdict  may  be  general  or  special.  A 
general  verdict  is  expressed  in  general  terms,  and 
finds  the  issue  for  the  plaintiff  or  defendant.  A  spe- 
cial verdict  is  where  the  jury,  by  request  of  the  par- 
ties or  of  their  own  motion,  write  out  a  statement  of 
the  facts  found  by  them  in  detail,  leaving  it  for  the 
court  to  decide  upon  the  facts  so  found,  whether  the 
judgment  should  be  given  for  the  plaintiff  or  defend- 
ant. When  they  have  so  agreed  they  reduce  the  ver- 
dict to  form,  cause  their  foreman  to  sign  it,  and  then 
bring  it  into  court,  where  it  is  delivered  to  the  clerk, 
who  reads  it  and  asks  the  jury  if  it  is  their  verdict. 
If  they  assent  it  is  recorded.  If  either  party  requests 
it  the  jury  is  polled,  which  is  done  by  calling  each 
juror  separately  by  name  and  asking  him  if  the  ver- 
dict is  his.  If  any  juror  answers  in  the  negative  they 
are  sent  back  to  their  room  for  further  deliberation. 
If  the  jury  say  they  are  unable  to  agree  upon  a  ver- 
dict, and  the  judge  is  satisfied  that  such  is  the  fact, 
he  may  discharge  them,  in  which  event  the  case  must 
be  tried  again. 

§  570.  Motion  to  set  verdict  aside  and  for  a  new 
trial. — The  party  against  whom  the  verdict  is  given 
may  move  to  set  it  aside  and  for  a  new  trial.  Such 
motion  may  be  based  upon  several  grounds,  as  that 
the  jury  was  guilty  of  corruption  or  gross  miscon- 
duct; that  one  or  more  of  the  jurors  had  fraudulently 
procured  himself  to  be  impaneled  and  sworn  after 
he  had  formed  and  expressed  an  opinion  as  to  the 
merits  of  the  case;  that  some  one  in  the  interest  of 
the  prevailing  party  had  tampered  with  the  jury;  that 
the  verdict  was  contrary  to  law  or  the  evidence  or  that 
the  court  instructed  the  jury  improperly  as  to  the  law. 


§571  CIVIL  PROCEDURE.  ?,51 

To  establish  misconduct  on  the  part  of  the  jurors 
sort  must  be  had  to  the  testimony  of  witnesses  other 
than  jurors,  it  being  a  rule  that  no  juror  will  be 
heard  to  testify  against  the  verdict,  but  he  is  per- 
mitted to  testify  in  support  of  it.  If  the  motion  is 
overruled  judgment  will  be  rendered  according  to 
the  verdict,  and  this  will  stand  as  a  final  adjudication 
of  the  rights  of  the  parties  unless  a  higher  court, 
for  good  cause  shown,  reverses  the  judgment. 

§571.  Motion  in  arrest  of  judgment.— Another 
way  of  getting  rid  of  an  adverse  verdict  is  by  a  mo- 
tion in  arrest  of  judgment.  This  motion  is  based 
upon  some  apparent  defect  or  omission  in  the  record 
which  makes  it  improper  for  the  court  to  give  judg- 
ment on  the  verdict,  as  where  after  verdict  for  the 
plaintiff  it  appears  that  his  complaint  does  not  con- 
tain allegations  sufficient  to  constitute  a  cause  of  ac- 
tion. When  the  verdict  is  set  aside  on  this  motion, 
the  plaintiff,  if  he  desires  to  continue  his  suit,  must 
amend  his  complaint,  and  when  the  issues  are 
newly  made  the  case  will  stand  for  re-trial.  When 
a  plea  or  answer  confesses  a  cause  of  action  and  re- 
lies upon  matter  in  avoidance  which  is  insufficient, 
although  found  to  be  true  by  the  verdict,  to  consti- 
tute a  defense  or  bar  to  the  action,  the  court  will 
render  judgment  for  the  plaintiff,  notwithstanding 
the  verdict. 

§  572.  Forms  of  judgments.— Of  judgments  there 
are  various  kinds  :  (1)  Judgment  by  confession  is 
given  against  a  party  who  appears  in  court  in  person 
or  by  attorney  and  admits  the  plaintiff's  claim. 
(2)  Judgment  by  default  is  taken  against  a  party 
who  has  been  served  with  a  summons  to  appear  to  an 


352  ELEMENTARY  LAW.  §  573 

action  and  fails  to  do  so.  (3)  Judgment  upon  non- 
suit is  taken  against  a  plaintiff  who,  after  bringing 
his  suit,  fails  or  refuses  to  prosecute  it.  (4)  Judg- 
ment upon  demurrer  is  where  an  issue  of  law  raised 
by  demurrer  is  decided  by  the  court,  and  the  party 
against  whom  the  decision  is  made  refuses  to  proceed 
further,  in  which  case  judgment  is  rendered  against 
him.  (5)  Judgment  upon  the  verdict  is  where  the 
court  enters  upon  the  record  its  sentence  in  accord- 
ance with  the  verdict.  (6)  An  interlocutory  judgment 
is  a  judgment  which  decides  not  the  cause,  but  only 
settles  some  intervening  matter  relating  to  the  cause. 
( 7 )  A  final  judgment  is  a  judgment  which  disposes  of 
the  whole  merits  of  the  cause  and  leaves  nothing  for 
further  consideration  of  the  court. 

§  573.  Appeals  and  writs  of  error. — After  final 
judgment,  the  defeated  party  if  not  content  goes  to  a 
higher  court  upon  an  appeal  or  writ  of  error.  By 
the  practice  in  some  states  an  appeal  takes  the  whole 
case  to  a  higher  court,  where  it  is  tried  again  on  the 
merits.  In  other  states  an  appeal  to  the  higher  court 
is  for  the  purpose  of  having  the  record  reviewed,  to 
see  if  the  proceedings  of  the  court  below  have  been 
according  to  law.  A  writ  of  error  removes  the  cause 
from  the  court  where  final  judgment  was  given,  and 
the  record  is  reviewed  for  the  purpose  above  named. 
In  either  case,  upon  appeal  or  error,  the  judgment  of 
the  court  below  is  affirmed,  reversed  or  modified, 
and  the  cause  is  then  sent  to  the  court  where  the 
judgment  was  entered  to  be  proceeded  with  or  dis- 
posed of  according  to  the  decision  of  the  higher  court. 

§  574.  Execution. — When  the  case  is  finally  adju- 
dicated and   all  motions   and   appeals  and  writs  of 


§574  CIVIL  PROCEDURE.  ;;;,.; 

error  are  disposed  of,  the  successful  party  is  entitled 
to  have  his  execution,  which  is  a  process  issuing  out 
of  the  court  where  judgment  is  given,  directed  to  the 
sheriff  and  requiring  him  to  satisfy  the  judgment  by 
seizure  and  sale  of  the  property  of  the  party  against 
whom  the  judgment  is  rendered.  The  manner  in 
which  this  process  is  to  be  executed  depends  upon 
the  provisions  of  the  statutes  on  that  subject. 


23 


CHAPTER  XLII. 

EQUITY  AND  PROCEEDINGS  IN  EQUITY. 

§  575.  Equity  jurisdiction. — The  jurisdiction  of  a 
court  of  equity  pertains  to  those  matters  in  which 
the  rights  of  the  parties  can  not  be  properly  ascer- 
tained and  determined  by  proceedings  at  law  ;  and 
it  is  a  settled  rule  that  where  there  is  an  adequate 
remedy  at  law  the  parties  have  no  right  to  seek  re- 
dress in  a  court  of  equity.  The  object  of  an  action 
at  law  is  to  recover  damages  and  a  judgment  at  law  is 
generally  enforced  by  a  seizure  of  the  property  of  the 
party  against  whom  the  judgment  is  rendered.  A  de- 
cree in  equity  requires  the  party  against  whom  it  is 
made  to  do  or  refrain  from  doing  some  act,  and 
obedience  to  it  is  enforced  by  attachment,  or  by  the 
appointment  of  some  person  to  do  the  act  for  him  and 
in  his  name  and  on  his  behalf. 

§  576.  Generally  it  may  be  said  that  courts  of 
equity  are  established  to  detect  latent  frauds  and 
concealments  which  the  process  of  the  law  is  not 
adapted  to  reach  ;  to  enforce  the  execution  of  such 
matters  of  trust  and  confidence  as  are  binding  in 
conscience,  though  not  cognizable  in  a  court  of  law ; 
to  deliver  from  such  dangers  as  are  owing  to  mis- 
fortune or  oversight  ;  and  to  give  a  more  specific  re- 
lief, and  more  adapted  to  the  circumstances  of  the 

(354) 


§577     EQUITY  AND  PROCEEDINGS  IX  EQUITY.        355 

case,  than  can  always  be  obtained  by  the  generality 
of  the  rules  of  common  law. 

§  577.  Injunction — Prohibitory  and  mandatory. — 
The  aid  of  a  court  of  equity  is  sought  where  it  is  nec- 
essary to  prevent  the  doing  of  some  act  which  will 
result  in  such  injury  to  one's  property  or  rights  as 
can  not  be  adequately  compensated  in  damages, 
as  the  destruction  of  trees,  the  infringement  of 
copyrights  or  trade-marks,  the  creating  or  continuance 
of  a  nuisance,  the  keeping  of  ferocious  animals,  the 
making  of  noises  at  unseasonable  hours  near  one's 
dwelling,  and  for  other  causes.  Where  a  proper  case 
is  made  the  court  grants  a  prohibitory  injunction. 
In  a  case  of  emergency  the  injunction  will  be  tem- 
porary and  will  continue  in  force  until  the  hearing, 
when  if  the  complainant  makes  out  his  case  the  in- 
junction will  be  made  perpetual.  "Where  it  appears 
that  it  is  necessary  that  some  act  be  done  to  prevent 
or  suppress  a  wrong,  what  is  known  as  a  mandatory 
injunction  will  be  granted,  as  where  one  has  created 
and  maintains  a  nuisance  he  will  be  ordered  to  re- 
move or  abate  it. 

§  578.  General  scope  of  equity  jurisdiction. — The 
scope  of  equity  jurisdiction  is  extensive,  as  will  be 
seen  from  the  following  partial  enumeration  of  cases 
for  its  exercise.  If  the  execution  of  a  contract  has 
been  procured  by  fraud,  equity  will  cancel  it.  If  by 
mistake  or  fraud  a  contract  lias  been  so  framed  as 
not  to  express  the  intention  of  the  parties,  equity 
will  correct  the  mistake,  reform  and  enforce  the  con- 
tract according  to  their  real  intention.  A  contract  to 
execute  a  conveyance  of  land  will  be  specifically 
enforced  in  equity  when  it  appears  that  the  party 


356  ELEMENTARY  LAW.  §  579 

demanding  its  enforcement  is  not  himself  in  default. 
In  such  cases,  where  the  decree  directs  a  conveyance 
and  the  party  refuses  to  obey  the  decree  the  court 
may  enforce  it  by  attachment,  or  by  appointing  some 
person  to  make  the  conveyance.     The  appointment 
of  receivers  to  manage,  control  and  dispose  of  prop- 
erty,  the  adjustment  of   accounts  between  partners 
and  between  other  persons  when  by  reason  of  the 
number  and  nature  of  the  claims  they  are  too  com- 
plicated   to  be  settled  at   law;   the  setting  aside  of 
conveyances  made  to  defraud  creditors;  to  regulate 
trusts  and  control  the  trustee  in  his  dealings  with  the 
trust  estate;  the  guardianship  and  control  of  infants 
and  their   property;   applications   for  relief  against 
forfeitures;  to  compel  the  delivery  of  title  deeds;  to 
cancel  notes  or  other  forms  of  contract  which  are  not 
valid  or  have  been  discharged;  to  determine  who  of 
several  claimants  is  entitled  to  a  fund  in  court  or 
in  the  hands  of  a  third  party  who  is  in  doubt  as  to 
who  may  be  the  rightful  claimant;  proceedings  to  fore- 
close mortgages,  or  to  redeem  property  from  sales  at 
foreclosure;  these  are  all  matters  which  are  properly 
cognizable  in  courts  of  equity. 

§  579.  A  court  of  equity  having  obtained  juris- 
diction will  administer  full  relief  .—Where  a  court  of 
equity  obtains  jurisdiction  of  the  subject-matter  of 
controversy,  it  will  retain  it  until  all  the  rights  of  the 
parties  litigant  are  finally  determined.  And  where, 
in  the  course  of  the  proceedings,  it  becomes  neces- 
sary to  pass  upon  the  legal  as  well  as  the  equitable 
rights  of  the  parties,  the  court  will  proceed  to  a  final 
adjudication  of  them  all,  disposing  of  legal  matters 
according  to  the  principles  of  law,  and  disposing  of 


§580      EQUITY  AND  PROCEEDINGS  IN  EQUITY.        357 

questions  of  equity  according  to  the  settled  rules  of 
equity. 

§  580.  Suit  in  equity — How  commenced — Plead- 
ings.— A  suit  in  equity  is  commenced  by  filing  a  bill 
in  which  the  plaintiff  sets  forth  in  detail,  without 
repetition,  the  facts  upon  which  he  bases  his  claim 
for  equitable  relief.  Upon  the  filing  of  the  bill  a 
subpoena,  or  summons,  is  issued,  which  is  served  as 
in  actions  at  law.  If  the  defendant  does  not  appear, 
he  is  defaulted  and  a  decree  is  taken  against  him  by 
default.  He  usually  appears  by  a  solicitor  when  he 
desires  to  make  a  defense,  and  upon  a  day  named, 
called  a  rule  day,  he  is  required  to  plead,  answer  or 
demur  to  the  bill.  A  demurrer  to  a  bill  is  based  upon 
some  alleged  defect  in  its  form  or  substance.  If  the 
demurrer  is  sustained  the  plaintiff  can  amend  his 
bill;  if  it  is  overruled  the  defendant  can  plead  to  the 
bill  or  file  an  answer  thereto.  A  plea  to  a  bill  is 
based  upon  some  special  matter  of  defense  to  the 
whole  bill  or  a  part  of  it,  and  if  it  is  sustained  the 
plaintiff  may  amend,  if  he  can  do  so.  If  he  can  not 
amend  so  as  to  avoid  the  force  of  the  plea,  it  will  bar 
his  recovery  upon  so  much  of  the  bill  as  is  covered 
by  the  plea.  If  the  plea  is  overruled  the  respondent 
must  answer  or  a  decree  will  go  against  him.  An 
answer  in  equity,  like  an  answer  in  an  action  at  law, 
may  be  in  the  form  of  a  denial  of  the  allegations  of 
the  bill,  or  a  confession  of  the  substance  of  them  and 
the  setting  up  of  new  matter  which  constitutes  a  de- 
fense thereto.  If  the  defendant  is  not  content  with 
defeating  the  plaintiff,  but  claims  that  he  has  a  right 
to  some  affirmative  relief,  he  files  what  is  known  as 
a  cross  bill,  in  which  the  facts  upon  which  he  bases 


358  ELEMENTARY  LAW.  §  581 

his  claim  for  relief  are  set  out  as  fully  as  is  required 
in  the  original  bill,  and  to  this  cross  bill  there  may 
be  filed  a  demurrer,  plea  or  answer.  Following  the 
answer  is  the  general  replication  which  puts  the 
case  at  issue.  Before  filing  a  replication,  an  answer 
which  is  insufficient  may  be  excepted  to,  and  if  the 
exceptions  are  sustained  a  further  answer  will  be  re- 
quired. 

§  581 .  Evidence  on  hearing. — The  case  being  at  is- 
sue the  parties  proceed  to  the  taking  of  the  evidence 
which  is  in  the  form  of  depositions  made  before  an 
examiner,  commissioner  or  some  other  officer  author- 
ized by  law.  Sometimes  to  expedite  the  hearing  of 
a  cause  the  witnesses  are  allowed  to  appear  in  court 
and  testify  as  in  actions  at  law.  Equity  cases  are 
ordinarily  heard  and  decided  by  the  judge  without 
the  intervention  of  a  jury.  Where  the  case  seems  to 
require  it  the  court  may  frame  an  issue  of  fact  to  be 
tried  by  a  jury,  but  this  is  an  interlocutory  proceed- 
ing to  aid  the  court  in  making  the  final  decree.  The 
rules  as  to  the  competency  of  witnesses  and  the  rele- 
vancy and  admissibility  of  evidence  are  the  same  as  in 
actions  at  law.  The  decree  of  the  court  is  final  as  to 
the  subject-matter  and  the  parties  before  the  court,  and 
if  a  party  is  aggrieved  thereby  he  has  his  remedy  by 
appeal  to  a  higher  court,  or  by  filing  another  bill  in 
the  same  court  in  the  nature  of  a  bill  of  review, 
which  is  based  upon  alleged  errors  on  the  face  of  the 
record  or  the  discovery  of  new  and  material  evi- 
dence. 


CHAPTER  XLIII. 

ADMIRALTY    LAW    AND     PROCEDURE. 

§  582.  Origin  and  history.  —  Admiralty  law  and 
procedure,  as  they  formerly  prevailed  in  England, 
were  under  the  superintendency  of  the  courts  of 
common  law,  which  had  power  to  keep  the  courts 
of  admiralty  within  their  jurisdiction,  and  to  restrain 
and  prohibit  any  excess  of  power.  The  proceedings 
of  the  admiralty  courts  were  according  to  the  method 
of  the  civil  law,  and  were  formerly  held  before  the 
lord  high  admiral  of  England  and  such  tribunal  was 
not  a  court  of  record.  By  parliamentary  enactments 
the  jurisdiction  of  these  courts  has  been  enlarged 
and  their  dignity  elevated.  They  had  civil  and 
criminal  jurisdiction.  In  them  persons  were  tried 
for  crimes  committed  on  the  high  seas  or  on  the 
coasts  of  England  or  its  colonies,  but  as  they  pro- 
ceeded without  a  jury,  and  the  accused  was  liable  to 
be  tried  and  condemned  upon  the  opinion  of  a  single 
judge,  parliament  enacted,  in  the  reign  of  Henry 
VIII,  that  these  offenses  should  be  tried  by  the  ad- 
miralty court  with  the  aid  of  three  or  four  of  the 
common  law  judges.  An  indictment  was  necessary, 
and  the  right  to  trial  by  jury  according  to  the  law  of 
the  land  was  secured  to  the  prisoner. 

The  system  as  it  prevailed  in  our  colonies  gave  the 
vice-admirals   a   much   larger  jurisdiction   than  the 

(359) 


360  ELEMENTARY  LAW.  §  583 

courts  of  admiralty  in  the  mother  country  exercised 
at  that  time. 

§  583.  Admiralty  jurisdiction. — Article  3,  section 
3,  of  the  constitution  of  the  United  States,  confers 
admiralty  jurisdiction  upon  the  courts  of  the  United 
States.  These  courts  have  declared  as  the  settled 
doctrine  under  the  constitutional  grant  of  jurisdic- 
tion that  it  means  the  jurisdiction  which  had  been 
and  was  exercised  in  admiralty  in  this  country  prior 
to  and  at  the  time  the  constitution  was  adopted,  and 
not  admiralty  jurisdiction  as  it  was  understood  in 
England  or  Continental  Europe.  This  interpreta- 
tion, first  announced  by  Judge  Story  on  the  circuit, 
was  combatted  by  other  federal  judges,  but  it  is  now 
settled  law  that  the  jurisdiction  embraces  the  water- 
borne  commerce  of  the  United  States  conducted  on 
its  internal  navigable  waters  as  well  as  on  the  high 
seas,  and  has  grown  to  include  all  maritime  services 
and  contracts,  and  all  injuries  when  inflicted  upon 
such  waters.  For  a  time  it  was  attempted  to  restrict 
the  jurisdiction  to  such  navigable  waters  only  as  were 
affected  by  the  ebb  and  flow  of  the  tide,  but  the  su- 
preme court  has  established  the  doctrine  that  the 
constitutional  grant  extends  the  jurisdiction  not  only 
to  such  waters,  but  over  all  the  navigable  waters, 
canals  and  rivers  of  the  nation  and  wherever  ships 
float  and  navigation  successfully  aids  commerce, 
whether  internal  or  external. 

Admiralty  jurisdiction  as  to  torts  is  confined  to 
wrongs  committed  on  the  water.  It  extends  to  mat- 
ters happening  during  voyages  between  two  ports  in  the 
same  state  and  to  matters  happening  in  foreign  waters. 
Jurisdiction  does  not  depend  on   citizenship  of  the 


§584         ADMIRALTY  LAW  AND  PROCEDURE. 

parties,  and  where  foreigners  appeal  to  our  admiralty 

courts,  their  controversies  will  be  adjudicated.  All 
ships  are  prima  facie  subject  to  admiralty  jurisdic- 
tion, but  there  are  exceptions  as  to  foreign  vessel-  of 
war  belonging  to  friendly  nations,  and  vessels  en- 
gaged in  the  service  of  a  city  government.  Gener- 
ally stated,  the  subjects  of  maritime  jurisdiction  are 
maritime  contracts,  touching  rights  and  duties  ap- 
pertaining to  commerce  and  navigation,  and  also 
all  torts  or  injuries  of  a  civil  nature  committed  on 
navigable  waters.  As  to  torts  the  test  of  jurisdiction 
is  locality,  as  to  contracts  it  depends  on  the  subject- 
matter.  Contracts  for  building  vessels  and  for  labor 
and  materials  in  their  construction  are  not  maritime 
contracts.  As  to  torts,  they  must  be  torts  for  which 
the  vessel  is  liable,  and  an  assault  by  one  passenger 
on  another  is  not  a  subject  of  admiralty  jurisdiction. 
It  is  otherwise  where  the  wrong  is  committed  by  the 
officers  or  crew  of  the  vessel.  All  prize  cases  and 
controversies  about  the  distribution  of  prize  money 
are  for  the  admiralty  courts.  The  jurisdiction  of  the 
United  States  courts  in  admiralty  cases  is  exclusive, 
and  it  is  lodged  in  the  district  courts.  If  the  district 
court  is  improperly  proceeding  with  a  cause  under 
claim  of  admiralty  jurisdiction,  the  supreme  court 
may  issue  its  writ  of  prohibition  to  restrain  it  from 
going  further. 

§584.  Admiralty  procedure. — The  forms  of  pro- 
cedure in  admiralty  arc  prescribed  by  rules  formu- 
lated by  the  supreme  court  of  the  United  States.  The 
pleadings  are  simple  and  the  rule-  as  to  allowing 
amendment-  are  very  liberal.  Whenever  a  vessel  or 
cargo  is  seized  it  is  common  practice  to  release  it  if  the 


362  ELEMENTARY  LAW.  §  584 

owner,  who  is  called  the  claimant,  makes  a  stipu- 
lation with  security,  that  he  will  pay  the  demand  of 
the  plaintiff  or  libellant,  as  he  is  called,  if  there  is  an 
adjudication  in  his  favor.  The  libel,  which  is  the 
first  pleading  filed,  must  show  a  case  for  admiralty 
jurisdiction,  and  if  it  is  filed  for  the  benefit  of  all 
who  are  interested  in  like  claims  against  the  vessel 
it  must  so  state.  One  peculiarity  about  the  practice 
is  that  recoupment  is  allowed  in  cases  of  tort  and 
contract,  even  when  it  goes  to  the  extent  of  compell- 
ing contributions  among  joint  tort  feasors.  In  case 
of  collision  the  damages  may  be  apportioned  accord- 
ing to  the  degree  of  negligence  where  both  vessels  are 
to  blame.  In  taking  evidence,  the  rules  are  very 
lax  and  this  results  from  the  nature  of  the  case,  the 
witnesses  being  seafaring  men,  and  their  places  of 
residence  and  movements  being  often  sudden  and  un- 
certain. Unless  the  statute  expressly  requires  it, 
there  is  no  jury  trial.  Where  there  is  a  variance  be- 
tween the  evidence  and  pleadings,  it  will  not  be  fatal 
unless  it  is  so  great  as  to  mislead  the  court.  The 
decision  is  against  the  vessel  and  all  persons  over 
whom  the  court  obtained  jurisdiction.  Such  decrees 
are  good  against  all  the  world,  so  far  as  the  vessel  or 
cargo  is  concerned,  and  can  not  be  questioned  even 
in  the  courts  of  a  country  whose  vessel  has  been 
seized  and  condemned  in  a  foreign  port  by  a  foreign 
court. 


CHAPTER  XLIV. 

EXTRAORDINARY  REMEDIES  AND  SPECIAL  PROCEEDINGS. 

Apart  from  the  ordinary  forms  of  action  there  is  a 
class  of  remedies  which  are  properly  designated  as 
extraordinary  remedies,  such  as  mandamus,  quo  war- 
ranto, prohibition,  habeas  corpus,  contempt. 

§  585.  Mandamus. — The  writ  of  mandamus  is  a 
command. issuing  from  a  court  of  competent  jurisdic- 
tion in  the  name  of  the  state  directed  to  some  corpo- 
ration or  officer,  or  inferior  court,  requiring  the  per- 
formance of  a  particular  duty  therein  specified,  which 
duty  results  from  the  official  station  of  the  party  to 
whom  the  writ  is  directed,  or  from  operation  of  law. 
The  writ  is  either  alternative  or  peremptory.  In  the 
first  instance  it  is  usual  to  issue  it  in  the  alternative 
form,  which  requires  the  person  to  whom  it  is  di- 
rected to  appear  and  show  cause  why  the  peremptory 
writ  should  not  issue.  If  he  shows  good  cause,  the 
proceedings  are  at  an  end.  If  he  fails  to  show  good 
cause,  the  court  awards  the  peremptory  writ  which 
is  its  final  judgment  in  the  case,  and  obedience  to  it 
can  be  enforced  by  attachment.  From  judgments 
awarding  the  peremptory  writ  there  is  usually  an  ap- 
peal allowed  except  in  some  special  cases,  as  where  it 
issues  from  the  courts  of  last  resort. 

§  586.  Nature  of  the  action.— The  proceeding  is 
instituted  in  the  name  of  the  state  on  the  relation  of 

(363) 


364  ELEMENTARY  LAW.  §  587 

some  individual  who  has  an  interest  in  the  matter,  and 
who  is  known  as  the  relator.  The  writ  is  issued  only 
in  cases  where  there  is  a  clear  legal  right  and  the 
party  has  no  other  adequate  remedy.  Its  office  is  to 
compel  the  performance  of  a  ministerial  act,  but 
not  to  control  the  exercise  of  a  discretion.  It  will 
issue  to  compel  a  judge  to  decide  a  case,  but  it  will 
not  direct  him  how  to  decide  it.  By  the  French  code 
a  judge  who  refuses  to  decide  a  case  may  be  sued  for 
a  denial  of  justice.  Though  generally  used  to  en- 
force the  performance  of  public  duties,  it  may  be 
resorted  to  to  enforce  private  rights  when  withheld 
by  officers.  The  following  are  some  of  the  cases  in 
which  this  writ  may  be  invoked  :  ( 1 )  To  compel 
the  board  of  commissioners  to  build  or  repair  bridges; 
(2)  to  compel  a  judge  to  sign  a  bill  of  exceptions  or 
to  make  a  record;  (3)  to  compel  a  justice  of  the  peace 
to  render  judgment  or  send  papers  to  a  higher  court; 
(4)  to  compel  the  mayor  and  city  council  to  levy  a 
tax,  or  make  estimates  for  public  improvements  in 
favor  of  contractors. 

§  587.  Quo  warranto. — Quo  warranto  is  the  name 
of  a  writ  which  at  common  law  might  be  issued 
against  persons  or  corporations  claiming  to  exercise 
any  office  or  franchise,  for  the  purpose  of  inquiring 
into  their  authority,  and  ousting  them  from  such 
office  or  franchise  in  case  no  authority  should  be 
shown.  By  the  common  practice  in  many,  if  not  all, 
the  states,  the  redress  is  sought  by  means  of  an  in- 
formation in  the  nature  of  a  quo  warranto.  The 
cases  in  which  the  remedy  is  applied  are  (1)  where 
any  person  shall  usurp  any  public  office,  or  any  office 
in  a  private  corporation;   (2)  where  any  officer  has 


§588  EXTRAORDINARY  REMEDIES,   ETC.  3tf5 

done  or  suffered  an  act  which  works  a  forfeiture  of 
the  office;  (3)  where  an  association  of  persons  shall 
assume  to  act  as  a  corporation  contrary  to  law;  (4) 
where  for  non-user  or  misuser  a  corporation  has  for- 
feited its  corporate  rights. 

§  588.  How  obtained. — The  information  is  based 
upon  the  affidavit  of  some  person,  who  states  specifi- 
cally the  acts  or  omissions  which  show  a  case  justi- 
fying the  proceedings.  When  the  information  is 
filed  and  the  proper  notice  is  served,  the  defendant 
appears  and  the  case  is  conducted,  as  to  pleading  and 
trial,  as  ordinary  civil  cases,  except  where  the  statute 
makes  provision  for  a  different  method  of  proceeding. 

§  589.  Prohibition. — Prohibition  is  an  extraordi- 
nary writ  issuing  out  of  a  court  of  superior  jurisdic- 
tion directed  to  an  inferior  court  commanding  it  to 
cease  entertaining  jurisdiction  in  a  cause  or  proceed- 
ing over  which  it  has  no  control,  or  where  such  in- 
ferior tribunal  assumes  to  entertain  a  cause  over 
which  it  has  jurisdiction,  but  goes  beyond  its  legiti- 
mate powers  and  transgresses  the  bounds  prescribed 
to  it  by  law.  It  is  a  writ  which  should  only  be  issued 
in  cases  of  extreme  necessity  and  not  for  a  grievance 
which  may  be  redressed  by  means  of  the  ordinary 
forms  of  law  or  in  equity.  The  application  for  the 
writ  is  addressed  to  the  sound  discretion  of  the  court 
and  will  be  issued  only  where  the  wrong  is  imminent 
and  the  right  to  the  remedy  is  clear.  Ordinarily,  no 
appeal  lies  from  the  judgment  of  the  court  refusing  to 
grant  the  writ. 

§  590.  Habeas  corpus. — The  writ  of  habeas  corpus 
is  issued  by  any  court  of  competent  jurisdiction  or 
judge  thereof,    in  behalf  of    any  person  who  is  re- 


366  ELEMENTARY  LAW.  §  591 

strained  of  his  liberty  under  any  pretext  whatever, 
and  it  is  directed  to  the  officer  or  person  who  has 
custody  of  the  petitioner,  commanding  him  to  pro- 
duce the  body  of  the  person  so  restrained  forthwith 
before  the  judge  or  court  by  whose  order  the  writ 
was  issued,  with  the  day  and  cause  of  his  caption 
and  detention.  It  is  a  writ  of  right,  and  the  con- 
stitution of  the  United  States  provides  that  the  priv- 
ilege of  the  writ  shall  not  be  suspended,  unless 
when  in  cases  of  rebellion  or  invasion  the  public 
safety  requires  it. 

§  591.  What  application  must  show — Return. — 
One  who  applies  for  the  writ  must  show  in  his  appli- 
cation by  whom  the  person  is  restrained,  the  cause 
or  pretense  of  the  restraint,  and  in  what  the  illegality 
of  the  restraint  consists.  Where  the  writ  is  served 
upon  the  person  to  whom  it  is  directed,  he  must 
make  an  immediate  return,  and  if  he  delays  or  re- 
fuses he  may  be  attached  for  contempt.  Where  he 
produces  the  person  held  in  custody,  he  must  make 
and  file  a  return,  making  a  full  statement  of  the  au- 
thority for  the  detention  and  exhibit  a  copy  of  the 
warrant  under  which  he  restrains  the  person  in  his 
custody.  If  the  applicant  deems  the  return  insuf- 
ficient, he  files  exceptions  thereto  and  the  judge  pro- 
ceeds to  dispose  of  the  application  in  a  summary 
manner.  After  hearing  the  case  the  judge  remands 
the  applicant  to  the  officer  or  person  having  him  in 
custody,  if  the  restraint  is  lawful;  if  it  is  unlawful 
he  discharges  the  applicant  from  custody. 

§  592.  When  legality  of  restraint  will  not  be  in- 
quired into. — The  court  or  judge  will  never  inquire 
into  the  legality  of  the  restraint  where  it  is  in  pur- 


§593         EXTRAORDINARY  REMEDIES,  KTC.  3^7 

suance  of  the  process  of  a  United  States  court  having 
jurisdiction,  or  of  a  judgment  of  a  court  of  compe- 
tent jurisdiction,  or  when  it  is  for  a  judgment  in 
contempt  proceedings  by  a  court  of  competent  juris- 
diction, or  when  it  is  upon  a  warrant  of  arrest  of  a 
court  of  superior  jurisdiction  having  cognizance  of 
the  crime  or  offense  charged  against  the  person  re- 
strained. 

§  593.  Contempt. — Contempt  is  disorderly,  con- 
temptuous or  insolent  language  or  behavior  in  the 
presence  of  a  legislative  or  judicial  body  tending  to 
disturb  its  proceedings  or  to  impair  the  respect  due  to 
its  authority;  or  a  disobedience  to  the  rules  or  orders 
of  such  a  body  which  interferes  with  the  due  admin- 
istration of  the  law;  or  speaking  or  writing  contempt- 
uously of  the  court  or  judges  acting  in  a  judicial 
capacity;  or  by  printing  false  accounts  and  disre- 
spectful comments  upon  the  court  concerning  causes 
then  on  trial.  The  power  to  punish  for  contempt  is 
inherent  in  courts,  though  in  many  states  laws  have 
been  enacted  which  define  and  limit  the  power,  and 
in  some  cases  provide  for  appeals.  The  power  of 
legislative  bodies  to  punish  for  contempt  does  not 
reside  in  inferior  legislative  bodies,  such  as  town 
councils.  Contempt  of  court  may  be  committed  by 
inferior  judges  or  magistrates,  who  refuse  to  obey 
the  lawful  orders  of  the  superior  courts;  by  sheriffs 
or  other  officers  of  the  court  in  oppression  or  neglect 
of  duty;  by  attorneys  in  breach  of  decorum  or  acts 
of  gross  injustice;  by  jurors  in  misconduct  after  they 
are  impaneled  and  sworn;  by  persons  summoned  as 
witnesses  refusing  to  obey  the  summons;  by  editors 
and   publishers  who,   pending  a  cause,   print   state- 


368  ELEMENTARY  LAW.  §  594 

ments  concerning  the  court,  jury  or  parties,  calculated 
to  influence  the  decision;  by  persons  who  knowingly 
interfere  with  property  in  the  custody  of  the  officers 
of  the  court. 

§  594.  Direct  and  indirect  or  constructive  con- 
tempt.— Where  the  act  constituting  the  contempt  is 
in  the  presence  of  the  court  it  is  a  direct  contempt, 
and  the  court  proceeds  at  once  to  punish  the  offender 
without  hearing  testimony.  Where  the  act  is  not  in 
the  presence  of  the  court  it  is  an  indirect  or  con- 
structive contempt,  and  in  such  cases  it  is  usual  to 
issue  a  summons  to  the  party  to  appear  in  court  in 
person  and  show  cause  why  he  should  not  be  pun- 
ished for  contempt.  The  accused  will  be  allowed  to 
file  an  affidavit  or  to  state  facts  orally  on  oath  show- 
ing that  he  did  not  mean  any  disrespect  to  the  court; 
or  he  may  be  compelled  to  answer  questions  put  to 
him  under  the  direction  of  the  court,  and  if  it  appears 
upon  the  hearing  that  the  accused  acted  in  good  faith 
and  without  any  intention  to  be  disrespectful  to  the 
court  he  will  usually  be  discharged.  When  adjudged 
guilty  the  court  may  fine  or  imprison  the  offender. 

§  595.  Attachment. — Attachment  is  a  proceeding 
in  aid  of  an  action  at  law  by  which,  at  or  after  the 
commencement  of  the  action,  the  plaintiff  causes 
the  seizure  of  the  defendant's  property  to  secure  the 
satisfaction  of  any  judgment  he  may  recover  in  the 
action.  To  procure  this  seizure  the  plaintiff  must 
make  an  affidavit  showing  that  the  defendant  is  in- 
debted to  him  in  a  sum  named;  that  he  has  sold  or 
is  about  to  sell  and  dispose  of  his  property  subject 
to  execution,  with  the  intent  to  delay  or  defraud  his 
creditors;  or  that  he  is  not  a  resident  of  the  state 


§596  EXTRAORDINARY  REMEDIES,  ETC.  360 

where   the  suit   is   pending.     These   are    the  usual 

causes  which  are  alleged  as  a  basis  i'ur  the  proceed- 
ings. What  should  be  alleged,  however,  in  the  affi- 
davit, as  well  as  the  other  steps  in  the  proceedings, 
are  matters  of  statutory  regulation.  Before  the  writ 
of  attachment  is  issued  the  plaintiff  must  execute  an 
undertaking  to  the  defendant  for  the  payment  of  all 
costs  and  damages  if  the  proceedings  are  wrongful 
and  oppressive. 

§  596.  How  writ  served. — When  the  writ  is  issued 
and  comes  to  the  hands  of  the  sheriff,  it  is  his  duty 
to  execute  it  at  once  by  the  seizure  of  the  property 
of  the  defendant  sufficient  in  quantity  to  satisfy  the 
plaintiff's  demand.  If  through  his  neglect  the  plaint- 
iff's claim  is  lost,  he  will  be  responsible  for  the  dam- 
ages, and  he  and  his  sureties  may  be  sued  therefor 
on  his  official  bond.  If  he  seizes  property  the  defend- 
ant may  reclaim  it  by  giving  a  bond  for  its  redelivery 
in  case  there  is  a  judgment  against  him,  or  that  he 
will  pay  any  judgment  that  may  be  awarded  against 
him  in  the  action.  If  the  sheriff  is  in  doubt  as  to 
the  ownership  of  property  which  is  claimed  by  per- 
sons other  than  the  defendant,  he  may,  before  seizing 
it,  demand  that  the  plaintiff  make  and  deliver  to 
him  a  bond  to  indemnify  him  against  any  judgment 
which  maybe  rendered  against  him,  in  case  it  should 
turn  out  that  the  property  seized  did  not  belong  to  the 
defendant. 

§  597.  Garnishment. — If,  at  the  time  of  commenc- 
ing his  action  or  afterwards,  the  plaintiff  will  make 
an  affidavit  setting  forth  the  causes  for  attachment, 
and  the  additional  fact  that  certain  persons  are  in- 
24 


370  ELEMENTARY  LAW.  §  598 

debted  to  the  defendant,  a  writ  of  garnishment  will 
be  issued  and  served  upon  the  persons  named,  after 
service  of  which  it  is  their  duty  to  appear  in  court 
and  make  answer,  and  if  it  appears  that  they  owe 
the  defendant  money  which  should  be  applied  to 
plaintiff's  claim,  the  court  will  order  it  to  be  paid 
into  court  to  satisfy  plaintiff's  judgment,  if  he  shall 
recover  judgment. 

§  598.  Capias. — Another  proceeding  in  aid  of  an 
action  is  what  is  popularly  called  a  capias.  The  use 
of  the  capias  is  very  much  restricted  in  the  United 
States,  and  is  now  confined  to  cases  of  fraud  or  prob- 
able injury  to  the  plaintiff  by  reason  of  the  removal 
of  the  defendant  to  avoid  service  of  process;  and  to 
cases  where,  after  judgment,  the  defendant  fraudu- 
lently conceals  money  or  property  which  should  be 
applied  to  its  satisfaction.  The  writ  when  issued  re- 
quires the  officer  to  take  and  keep  the  defendant  until 
he  is  discharged  by  order  of  court,  or  until  he  pro- 
cures his  release  by  executing  such  bond  as  the  stat- 
ute may  require. 

§  599.  Arbitration. — Arbitration  is  a  method  of 
adjusting  conflicting  claims  by  the  parties  outside  of 
court  by  referring  the  matters  in  dispute  to  others. 
It  is  usual  where  there  are  two  parties  for  each  one 
to  select  a  person  to  represent  him.  The  persons  so 
selected  are  called  arbitrators,  and  if  they  can  not 
agree  the  matter  is  left  to  a  third  person  chosen 
by  the  arbitrators  called  the  umpire,  whose  de- 
cision is  final,  and  the  decision,  whether  made  by 
the  arbitrators  or  the  umpire,  is  called  the  award. 
There  are  two  kinds  of  arbitration,  arbitration  accord- 
ing to  statute  and  common  law  arbitration.     A  stat- 


§600  EXTRAORDINARY  REMEDIES,  ETC.  371 

utory  arbitration  is  where  the  parties  pursue  the 
method  prescribed  by  law  and  enter  into  bonds  for 
the  performance  of  the  award.  Where  such  an  award 
is  made  and  the  party  against  whom  it  is  given  fails 
or  refuses  to  perform  it,  the  matter  is  presented  to 
court,  where  the  award  is  confirmed  and  judgment 
rendered  accordingly,  unless  the  award  is  impeached 
for  the  misconduct  of  the  arbitrators  or  corruption. 
A  common  law  arbitration  is  where  the  parties  agree 
either  verbally  or  in  writing  to  submit  a  matter  to 
arbitration  without  following  the  forms  prescribed  by 
law.  Awards  made  in  such  cases  may  be  made  the 
basis  of  an  action  at  law  to  enforce  its  terms. 

§  600.  Accord  and  satisfaction. — Accord  is  a  satis- 
faction agreed  upon  between  the  party  injured  and 
the  wrong-doer.  The  law  encourages  all  efforts  made 
by  parties  to  settle  controversies  out  of  court,  and 
when  they  make  such  settlements  they  are  binding 
and  will  be  enforced.  To  make  an  accord  good  the 
satisfaction  agreed  upon  must  be  performed.  A 
mere  tender  of  performance  if  not  accepted  is  not  a 
good  satisfaction. 

§601.  Partition. — Partition  is  a  division  of  real 
property  amongst  several  persons  who  own  it  together. 
Partition  may  be  made  by  agreement  of  the  parties, 
and  if  they  can  not  agree  either  of  the  parties  can  in- 
stitute legal  proceedings,  in  which  the  division  will 
be  made  as  the  court  may  adjudge.  Partition  by 
agreement  is  a  very  simple  matter,  the  parties  exe- 
cuting mutual  releases  or  conveyances  to  one  an- 
other. They  may  also  submit  the  matter  to  arbitra- 
tion instead  of  resorting  to  legal  proceedings,  and  in 
such  case  the  award  of  the  arbitrators  or   the  umpire 


372  ELEMENTARY  LAW.  §  601 

will  fix  the  rights  of  the  parties.  Where  judicial 
proceedings  are  resorted  to,  the  party  instituting  the 
action  files  his  petition  in  the  proper  court,  setting 
out  by  specific  description  the  property  sought  to  be 
divided,  giving  the  names  of  all  the  parties  in  in- 
terest with  a  statement  of  the  nature  and  extent  of 
their  respective  interests.  A  notice  or  summons  is 
issued  and  served  upon  all  the  defendants,  and  if 
any  are  not  residents  of  the  state  a  notice  by  publica- 
tion is  given  in  the  manner  prescribed  by  statute. 
Infants  appear  and  defend  either  by  their  legal 
guardian  or  by  guardian  ad  litem,  as  the  statutes  of 
the  several  states  require.  When  the  issues  are 
made  up  and  the  evidence  is  heard,  the  court  makes 
an  interlocutory  decree  of  partition  fixing  the  shares 
of  the  parties,  and  adjudicating  all  rights  and  equi- 
ties which  may  arise  in  the  case.  Where  one  of  the 
parties  has  expended  money  for  the  preservation  of 
the  property,  or  where  it  is  shown  that  one  of  the  par- 
ties has  received  money  or  property  from  the  ancestor  by 
way  of  advancement  of  part  of  his  portion  which  is  to  be 
charged  against  his  interest,  in  all  such  cases  the  court 
will  determine  the  rightsand  equities  of  the  parties  and 
incorporate  its  decision  in  the  interlocutory  decree. 
This  decree  adjudges  that  the  division  be  made  by 
commissioners,  naming  them,  and  requires  the  com- 
missioners to  report  their  doings  to  the  court.  When, 
this  report  comes  in  and  it  shows  that  a  division  has 
been  made,  any  party  in  interest  has  the  right  to  ex- 
cept to  the  report.  If  after  hearing  the  report  the 
court  determines  that  the  division  is  unfair,  a  sec- 
ond order  or  decree  is  made  requiring  the  commis- 
sioners to  make  a  new  division.     When  the  report  is 


§602  EXTRAORDINARY  REMEDIES,  ETC.  373 

continued  the  court  makes  a  final  decree  which 
tablishes  the  rights  of  the  parties  to  their  shares  in 
severalty.  If  it  appears  that  the  property  can  not  be 
divided  without  injury  to  the  parties,  the  court  or- 
ders it  to  be  sold,  appointing  a  commissioner  for  that 
purpose.  Where  it  is  sold  and  the  sale  is  reported 
and  the  report  confirmed,  the  final  decree  is  made 
dividing  the  proceeds  of  the  sale  amongst  the  parties 
according  to  their  respective  interests  and  directing 
the  commissioners  to  make  a  proper  deed  to  the  pur- 
chaser. 

§  602.  Certiorari. — The  writ  of  certiorari  is  a  writ 
which  issues  from  a  superior  or  appellate  court  to  an 
inferior  court  or  officer  exercising  judicial  functions,  or 
other  person,  requiring  such  court  or  officer  to  certify 
to  such  superior  court  a  full  and  complete  transcript 
of  the  records  and  proceedings  of'  any  such  inferior 
tribunal  or  officer,  or  to  produce  any  paper  whenever 
it  shall  be  necessary  for  the  proper  determination  of 
any  cause  or  proceedings  before  such  superior  or  ap- 
pellate court.  It  differs  from  a  writ  of  error  in  the 
fact  that  it  issues  from  the  higher  court  to  the  lower 
court,  whether  of  record  or  not,  and  at  any  stage  of 
the  proceedings,  as  well  before  as  after  judgment.  It 
also  issues  from  an  appellate  court  to  an  inferior 
court,  requiring  it  to  correct  or  amend  the  transcript 
of  its  proceedings,  whenever  it  is  made  to  appear  to 
the  appellate  court  that  there  has  been  a  mistake  or 
omission  as  to  any  material  particular  in  the  tran- 
script as  first  certified. 


CHAPTER    XLV. 

CRIMINAL    LAW. 

§  603.  Crimes  in  the  United  States. — A  crime  is 
an  act  committed  or  omitted  in  violation  of  a  public 
law.  The  right  to  punish  criminals  rests  upon 
grounds  of  policy;  in  a  large  sense  it  is  the  right 
of  self-defense,  and  is  absolutely  necessary  for  the 
preservation  of  society.  Crimes  are  denned  and  their 
punishment  regulated  by  the  common  law  or  statute 
law.  There  are  no  common  law  crimes  which  are 
recognized  by  the  federal  courts,  their  criminal  juris- 
diction being  limited  to  offenses  defined  by  the  laws 
enacted  by  congress.  In  most  of  the  states  of  the 
Union  there  are  no  offenses  punishable  as  crimes  ex- 
cept those  which  are  made  so  by  statutory  law. 

§  604.  Capacity  to  commit  crime. —  An  act  can 
not  be  criminal  unless  the  actor  is  a  responsible  be- 
ing, capable  of  knowing  that  the  act  is  wrong,  hav- 
ing power  to  control  his  actions.  An  idiot  or  a  lunatic, 
or  a  young  child,  is  incapable  of  committing  crime. 
Under  seven  years  of  age  a  child  is  conclusively  pre- 
sumed to  be  incapable;  between  the  ages  of  seven  and 
fourteen  it  is  incumbent  on  the  prosecution  to  prove 
capacity;  persons  over  the  age  of  fourteen  are  pre- 
sumed to  be  capable.  Aside  from  these  natural  in- 
firmities of  idiotcy,  lunacy  and  infancy,  persons  whose 
powers  have  become  enfeebled  by  disease,  drunken- 

(374) 


§605  CRIMINAL  LAW.  375 

ness,  or  any  cause,  to  such  an  extent  that  they  have 
lost  the  control  of  their  wills  and  are  unable  to  know 
right  from  wrong,  are  not  criminally  responsible,  al- 
though they  may  he  liable  in  a  civil  action  for  the 
wrongs  they  may  inflict  upon  others. 

§  005.  Criminal  statutes,  how  construed.— Crimi- 
nal statutes  are  construed  liberally  in  favor  of  the 
accused.  It  matters  not  how  immoral  an  act  may 
be,  or  how  injurious  to  society,  it  can  not  be  pun- 
ished as  a  crime  unless  it  is  prohibited  by  law. 

§  GOG.  Infamous  crimes. —  Infamous  crimes  are 
held  by  the  federal  courts  to  be  such  as  are  punished 
by  imprisonment  at  hard  labor.  The  state  statutes 
declaring  what  are  and  what  are  not  infamous  crimes 
are  not  harmonious. 

§607.  Crimes  classified.  —  Crimes  are  again  di- 
vided into  felonies  and  misdemeanors,  felonies  being 
such  offenses  as  are  punishable  with  death  or  impris- 
onment in  the  state  prison,  and  misdemeanors  offenses 
of  a  lower  grade,  for  which  lighter  punishments  are 
prescribed. 

§  608.  Compounding. — Compounding  an  offense  is 
where  one  for  a  consideration  agrees  not  to  prosecute 
the  offender,  or  to  stop  a  prosecution  already  begun. 

§  609.  Attempts. — Attempts  to  commit  crime  are 
sometimes  declared  to  be  crimes  themselves.  A  mere 
naked  purpose  to  commit  a  crime,  however,  unac- 
companied by  an  act  in  furtherance  of  the  purpose,  is 
not  punishable  as  an  attempt.  The  criminal  law  deals 
only  with  overt  acts.  It  sometimes  happens  that  a 
man  with  deliberate  purpose  attempts  to  commit 
a  crime  which  for  some  cause  unknown  to  him  he 
can  not  commit,  as  to  pick  a  pocket  which  is  empty, 


376  ELEMENTARY  LAW.  §  610 

or  to  shoot  at  another  with  an  unloaded  gun  ;  in 
such  cases  he  is  generally  held  criminally  responsi- 
ble. 

§  610.  Aiding,  counseling,  etc. — Advising,  coun- 
seling, encouraging  or  soliciting  another  to  commit  a 
crime  is  a  punishable  offense,  but  of  this  more  will 
be  said  when  we  come  to  speak  of  accessories. 

§  611.  Unlawful  intent  and  overt  act  must  unite. — 
In  every  crime  there  must  be  a  union  of  the  unlawful 
intent  and  the  overt  act,. and  both  act  and  intent  must 
be  proved.  In  most  cases  the  intent  is  inferred  from 
the  act  itself,  or  it  may  be  proved  by  circumstantial 
evidence.  There  is  much  confusion  in  the  decisions 
of  the  courts  of  the  various  states  as  to  the  character 
of  the  overt  act  necessary  to  constitute  the  offense. 
Thrusting  the  hand  into  an  empty  pocket  with  in- 
tent to  steal  has  been  declared  by  some  courts  to  be 
an  attempt  to  commit  larceny,  and  the  contrary  is 
held  by  other  courts.  So  of  shooting  at  another 
with  a  blank  cartridge.  Bishop  says,  as  we  think 
correctly,  after  carefully  examining  the  conflicting 
decisions,  "on  the  whole  we  may  deem  the  true  doc- 
trine to  be  that  where  the  object  is  not  accomplished, 
simply  because  of  obstructions  in  the  way,  or  be- 
cause of  the  want  of  the  thing  to  be  operated  upon, 
where  the  impediment  is  of  a  nature  to  be  wholly 
unknown  to  the  offender,  who  used  appropriate 
means,  the  criminal  attempt  is  committed." 

§  612.  Criminal  carelessness. — Where  through  the 
wanton  and  reckless  or  grossly  negligent  conduct  of 
one  an  accident  happens  which  causes  death,  the  act 
is  criminal.  As  where  an  engineer  in  charge  of  a 
locomotive  neglects  his  duty,  or  one  on   a  building 


§613  criminal  law.  :;:; 

throws  missiles    from  a  house  into  a    public  streel 
where  persons  are  passing. 

§  613.  Ignorance  or  mistake  of  fact. — Ignorance 
or  mistake  of  fact  will  sometimes  deprive  an  unlawful 
act  of  its  criminal  character,  as  where  one  takes  the 
property  of  another  supposing  it  to  be  his  own,  or 
obstructs  a  highway  without  knowing  it  to  be  a 
highway,  but  where  a  statute  makes  an  act  unlawful 
irrespective  of  guilty  knowledge,  ignorance  or  mis- 
take is  no  defense. 

§614.  Ignorance  of  law. — Ignorance  of  law  is  no 
excuse  for  the  commission  of  a  crime,  even  where 
the  statute  making  the  act  criminal  has  been  enacted 
so  recently  as  to  make  it  impossible  that  the  accused 
should  have  known  of  its  existence.  Such  ignorance 
would  go  far  to  mitigate  the  punishment,  and  would 
give  good  grounds  for  an  appeal  to  the  pardoning 
power  in  cases  of  conviction. 

§615.  Self-defense.— Self-defense  is  a  right  which 
exists  in  all  places  without  regard  to  positive  law. 
It  may  be  asserted  by  any  human  being,  where  he  is 
in  apparently  imminent  danger  of  suffering  loss  of 
life,  limb  or  great  bodily  harm.  If  the  conduct 
of  the  assailant  is  such  as  to  produce  in  the  mind  of 
a  reasonable  person  a  belief  that  such  harm  is  in- 
tended, the  person  assailed  may  defend  himself  even 
to  the  point  of  killing  his  assailant,  though  the  dan- 
ger was  not  real  but  only  apparent. 

§  616.  Offenses  committed  by  wife.— An  offense 
committed  by  the  wife  in  the  presence  of  the  hus- 
band is  prima  facie  done  by  his  coercion,  though  this 
presumption  may  be  overcome  by  evidence  showing 
that  she  acted  upon  her  own   independent  volition, 


378  ELEMENTARY  LAW.  §  617 

and  in  such  a  case  she  and  she  alone  is  criminally 
responsible. 

§  617.  Where  principal  liable  criminally  for  of- 
fense of  agent. — A  principal  is  not  liable  for  the  crimi- 
nal acts  done  by  his  agent  unless  the  agent  is  acting 
under  orders  from  the  principal.  The  same  rule  ap- 
plies to  master  and  servant.  Where  an  agent  or 
servant  is  put  in  charge  of  a  business,  such  as  pub- 
lishing a  newspaper  or  keeping  a  saloon,  and  a 
criminal  libel  is  published  in  the  paper  or  liquor  is 
unlawfully  sold  in  the  saloon,  the  owner  of  the  paper 
or  the  proprietor  of  the  saloon  may  be  punished 
criminally  for  the  act  of  the  agent  or  servant. 

§  618.  Principal  and  accessories. —  In  the  com- 
mission of  crimes  there  may  be  principals  and 
accessories.  To  constitute  one  a  principal  he  must 
be  actually  or  constructively  present  when  the  crime 
is  committed,  as  where  one  does  the  act,  and  another 
stands  near  by  to  give  assistance  or  give  warning  of 
the  approach  of  the  officers,  in  such  case  both  are 
principals. 

An  accessory  before  the  fact  is  one  who  is  not  the 
chief  actor  in  the  commission  of  a  crime,  but  pro- 
cures, counsels,  or  commands  another  to  commit  it. 
An  accessory  after  the  fact  is  one  who,  knowing  that 
a  crime  has  been  committed,  receives,  relieves,  com- 
forts or  assists  the  criminal. 

§  619.  Drunkenness. — Voluntary  drunkenness  will 
not  excuse  crime.  Where,  as  a  result  of  habitual 
drunkenness,  one  becomes  permanently  diseased  to 
the  extent  that  he  has  lost  his  will  power  and  is  in- 
capable of  knowing  right  from  wrong,  he  is  incapa- 
ble of    committing  crime.     Some  courts  have  held 


§  620  CRIMINAL  LAW.  379 

that  voluntary  drunkenness  aggravates  a  crime,  but 
the  better  opinion  is  now  to  the  contrary.  Drunken- 
ness of  the  accused  at  the  time  of  the  commission  of 
the  offense  may  be  given  in  evidence  to  show  want 
of  malice,  premeditation  or  intent. 

§  620.  Insanity. — Insanity,  where  it  is  such  as  to 
prevent  the  accused  from  distinguishing  right  from 
wrong,  will  relieve  him  of  criminal  responsibility, 
and  if  from  all  the  facts  in  the  case  the  jury  have  a 
reasonable  doubt  as  to  the  sanity  of  the  accused  they 
should  acquit. 

§  621.  Punishment. — Punishment  is  inflicted  for 
the  public  good.  The  same  act  may  be  punishable  as 
a  crime  and  be  a  wrong  to  the  individual  citizen,  in 
which  case  the  punishment  of  the  crime  does  not  pre- 
vent the  citizen  from  seeking  redress  in  a  civil  action 
for  the  damage  done  to  him  personally.  The  indi- 
vidual who  suffers  in  such  a  case  may  compromise 
with  the  offender  and  waive  his  right  to  redress,  but 
this  is  no  bar  to  a  prosecution  of  the  offender  by  the 
state. 

The  object  of  punishment  is  to  prevent  crime,  and 
this  is  effected  by  imposing  pecuniary  fines,  by  plac- 
ing the  offender  under  restraint  for  a  given  period  <>f 
time,  with  the  double  view  of  reforming  the  prisoner 
and  deterring  others  from  committing  like  offenses, 
and  in  cases  of  murder,  high  treason  and  other  crimes 
of  a  heinous  character,  capital  punishment  is  in- 
flicted. In  many  states  the  jury  pass  upon  the  ques- 
tion of  the  prisoner's  guilt,  and  the  court  fixes  the 
measure  of  punishment  within  the  limits  prescribed 
by  the  statute.  In  other  states  the  jury  have  this 
power.     In  the  federal    courts   the   jury  pass  only 


380  ELEMENTARY  LAW.  §  622 

upon  the  question  of  the  prisoner's  guilt.  Some- 
times, in  addition  to  the  penalties  of  fine  and  im- 
prisonment, the  offender  is  disfranchised  and  is  made 
incompetent  to  testify  as  a  witness. 

§  622.  Jurisdiction  of  crimes. — The  jurisdiction  to 
try  and  punish  offenders  against  state  laws  is  lodged 
in  the  courts  of  the  state  within  whose  borders 
the  offenses  are  committed.  Offenses  against  the 
laws  of  the  United  States,  are  within  the  exclusive 
jurisdiction  of  the  federal  courts  within  their  respec- 
tive districts.  This  is  what  may  be  called  geograph- 
ical jurisdiction.  Jurisdiction  may  depend  also  on 
the  class  of  crimes  the  court  may  take  cognizance  of. 
Petty  offenses  are  tried  by  magistrates  without  the 
formality  of  indictment  or  information,  while  graver 
charges  are  only  cognizable  by  superior  courts,  in 
which  the  indictment  is  preferred  by  the  grand  jury 
and  the  trial  is  by  a  petit  jury.  As  to  crimes  com- 
mitted on  the  high  seas,  the  jurisdiction  of  nations 
is  determined  by  treaties  and  the  law  of  nations. 

§  623.  Territorial  jurisdiction  of  crimes. — Ordi- 
narily, criminal  laws  have  no  force  beyond  the  boun- 
daries of  the  state  enacting  the  law.  But  cases  arise 
where  crimes  are  committed  partly  in  one  state  or 
county  and  partly  in  another.  If  one  enters  into  a 
conspiracy  with  others  to  commit  a  crime  in  another 
state,  and  the  crime  is  committed,  he  may  be  tried  and 
punished  in  the  state  where  the  crime  is  committed, 
though  before  the  trial  he  may  never  have  been  person- 
ally within  the  limits  of  that  state.  So  if  one  stands 
near  a  boundary  line  and  shoots  across  it,  and  the  shot 
takes  effect  upon  a  person  in  another  state  or  county 
he  mav  be  tried  in  the  jurisdiction  where  the  shot 


§624  ORIGINAL  LAW.  381 

took  effect.  If  a  fatal  blow  is  given  in  one  state  and 
the  victim  removes  to  another  before  death  ensues, 
he  must  be  tried  in  the  jurisdiction  where  the  blow 
was  given,  though  some  courts  hold  that  jurisdiction 
rests  concurrently  in  the  courts  of  both  localities. 
Offenses  committed  on  board  ships  are  generally 
punishable  in  tne  country  to  which  ships  belong. 
The  federal  courts  punish  offenses  committed  by  citi- 
zens of  the  United  States  in  foreign  lands,  but 
whether  the  courts  of  the  several  states  have  this 
power  is  a  mixed  question.  The  power  is  claimed  by 
the  courts  of  Virginia  and  Wisconsin,  and  it  is  denied 
in  New  York  and  Michigan.  Crimes  committed  on 
private  ships  in  foreign  ports  are  punishable  in  for- 
eign courts,  and  piracy  may  be  punished  in  the 
courts  of  any  country.  If  there  is  a  conflict  between 
the  municipal  law  of  a  country  and  the  law  of  na- 
tions, the  latter  will  prevail. 

§  624.  Jurisdiction  over  sovereigns,  ambassadors, 
etc. — A  sovereign  traveling  in  a  foreign  country  is 
not  subject  to  its  laws,  and  this  immunity  extends 
to  foreign  ambassadors,  their  households,  secretaries 
and  domestic  servants.  If  any  of  these  offend 
against  the  laws  of  the  country  where  they  may  be 
residing  temporarily,  the  only  redress  is  to  send 
them  home  and  make  demand  upon  the  country  they 
represent  for  reparation.  This  rule  does  not  ap- 
ply to  consuls  who  are  mere  commercial  agents. 
Persons  belonging  to  an  army  or  navy  within  foreign 
territory  are  free  from  arrest.  The  rights  of  subjects 
of  one  country  traveling  or  residing  in  another  are 
generally  regulated  by  treaty  stipulations.  In  the  ab- 
sence of  such  stipulations  the  rules  as   above  stated 


382  ELEMENTARY  LAW.  §  624 

will  prevail.  By  the  statutes  of  some  states,  where 
a  theft  is  committed  in  one  state  and  the  goods  are 
carried  to  another,  the  state  in  which  the  offense 
originated  has  exclusive  jurisdiction,  while  a  differ- 
ent rule  prevails  in  other  states. 


CHAPTER   XLVI. 

CRIMINAL    OFFENSES. 

Every  state  in  the  Union  has  its  own  way  of  defin- 
ing crimes  and  declaring  what  punishment  shall 
be  inflicted  upon  offenders.  We  shall  not  undertake 
to  give  a  compilation  of  the  various  statutory  enact- 
ments, but  shall  content  ourselves  by  giving  in  brief 
the  essential  ingredients  of  such  crimes  as  are  recog- 
nized and  punished  in  most  of  the  states. 

§  625.  Abortion. — Abortion  is  to  cause  the  mis- 
carriage or  premature  delivery  of  a  woman.  The 
statutes  of  some  of  the  states  require  that  the  child 
shall  have  quickened  in  the  womb  at  the  time  of  the 
commission  of  the  crime.  The  laws  of  other  states 
declare  that  the  offense  may  be  complete  at  any 
time  after  gestation  has  begun.  The  consent  of  the 
mother  is  no  defense. 

§626.  Adultery. — Adultery  is  voluntary  sexual 
intercourse  with  another  man's  wife.  The  woman 
must  be  married;  she  must  be  another  man's  wife. 
and  whoever,  married  or  single,  has  illicit  intercourse 
with  her  becomes  guilty  of  adultery.  Such  arc  the 
essentials  of  adultery  at  common  law.  In  some  states 
the  offender  who  is  married  is  alone  held  guilty;  in 
other  states,  where  the  intercourse  is  between  a  mar- 
ried woman  and  a  single  man,  the  woman  alone  is 
guilty. 

(3S3) 


384  ELEMENTARY  LAW.  §  627 

§  627.  Abduction  and  kidnaping:.  —  Abduction, 
though  not  a  common  law  crime,  is  made  a  crime  by 
the  statutes  of  most  of  the  states.  It  is  the  act  of 
taking  away  or  detaining  a  woman  against  her  will, 
or,  in  the  case  of  minors,  against  the  will  of  their 
parents  or  other  person  having  lawful  charge  of 
them.  In  a  more  restricted  sense  it  is  the  unlawful 
seizure  or  detention  of  a  female  for  the  purpose  of 
marriage,  concubinage  or  prostitution.  Kidnaping 
is  the  unlawful  seizure  of  any  person  with  the  in- 
tent to  remove  him  to  another  place.  It  is  a  false 
imprisonment  aggravated  by  the  intent  to  carry  the 
person  imprisoned  to  another  place.  By  the  com- 
mon law  kidnaping  was  the  forcible  abduction  or 
stealing  away  of  a  man,  woman  or  child  from  their 
own  country  and  sending  them  into  another. 

§  628.  Affray. — An  affray  is  the  fighting  together 
of  two  or  more  persons,  either  by  mutual  consent  or 
otherwise,  in  some  public  place,  to  the  terror  of  the 
people.  There  must  be  some  stroke  given  or  offered; 
mere  quarreling  and  the  use  of  threatening  words 
are  not  sufficient.  If  the  righting  is  in  private  it  is 
not  an  affray.  Prize  righting  as  it  is  now  practiced 
is  not  an  affray,  but  it  is  made  a  misdemeanor  by  the 
laws  of  most  of  the  states  of  the  Union.  In  Indi- 
ana, Kentucky,  and  some  other  states,  the  fighting 
must  be  by  mutual  agreement  to  constitute  an  affray; 
elsewhere  it  is  held  that  the  mere  fighting  in  a  pub- 
lic place,  with  or  without  mutual  consent,  constitutes 
the  offense. 

§  629.  Arson. — Arson,  as  defined  by  Coke,  is  the 
malicious  and  voluntary  burning  of  the  house  of  an- 
other by  night  or  by  day.     There  must  be  an  actual 


§030  CRIMINAL  OFFENSES 

burning  of  some  part  of  the  building,  though  it  is 
not  necessary  that  any  pari  should  be  win  illy  con- 
sumed. The  burning  is  sufficient  to  constitute  the 
offense  when  any  part  of  the  building  is  charred, 
but  a  mere  scorching  or  discoloration  is  not  enough. 
Formerly  the  crime  of  arson  was  limited  to  the  burn- 
ing of  dwelling-houses,  but  it  now  has  a  wider  scope, 
under  the  legislation  of  the  various  states,  so  that 
stables,  mills,  churches,  warehouses,  school-houses 
and  other  structures  may  be  the  subjects  of  arson. 
The  burning  must  be  malicious  and  willful,  and  not 
merely  negligent.  The  intent  to  injure  is  an  essen- 
tial ingredient  of  the  crime,  but  this  intent  will  be 
generally  presumed. 

§  630.  Assault. — A  simple  assault  as  defined  by 
Bishop  is  an  unlawful  physical  force  partly  or 
fully  put  in  motion,  creating  a  reasonable  apprehen- 
sion of  immediate  physical  injury  to  a  human  be- 
ing. It  is  essential  that  the  force  intended  to  be 
applied  should  be  put  in  motion.  Mere  preparation 
or  threats  are  not  an  assault.  There  must  be  some 
act  which  if  not  stopped  may  apparently,  or,  as  some 
courts  hold,  actually,  produce  injury.  Striking  at 
another  within  striking  distance  though  the  blow 
comes  short,  throwing  a  missile  at  another,  aiming 
a  gun  within  gunshot,  pointing  a  pitch-fork  at  a 
person  within  reach,  such  act  coupled  with  a  pres- 
ent intention  to  do  violence  would  be  an  assault. 

§  631.  Assault  and  battery. — A  battery  is  the  un- 
lawful touching  of  another  in  a  rude,  insolent  or 
angry  manner.  To  spit  upon  one,  to  set  a  >\n^  upon 
him  which  touches  or  bites  him,  to  touch  or  lav  hold 

of  the  clothes  of  another,  is  sufficient.     There  must 
25 


386  ELEMENTARY  LAW.  §  632 

be  intentional  physical  contact.  If  this  is  lacking  it 
can  amount  to  no  more  than  a  simple  assault. 

§  632.  Assault  with  intent. — An  assault  with  in- 
tent is  where  an  intent  to  commit  a  specific  crime  ac- 
companies the  assault,  as  an  assault  with  intent  to 
kill,  to  rob,  to  rape  or  to  inflict  some  serious  bodily 
injury.  In  order  to  convict  in  such  cases  the  spe- 
cific intent  charged  against  the  accused  must  be 
proved,  and  this  intent  may  be  inferred  from  his 
acts,  words  and  the  circumstances  surrounding  the 
transaction.  The  apparent  consent  of  persons  who 
are  legally  incapable  of  giving  consent  is  no  defense 
to  a  charge  of  assault  with  intent.  In  case  of  assault 
with  intent  to  commit  a  crime,  there  must  be  accord- 
ing to  the  rule  established  in  some  courts  a  present 
ability  in  the  assailant  to  inflict  the  injury,  but  the 
better  opinion  is  that  it  is  sufficient,  if  there  is  a  rea- 
sonably apparent  present  ability,  so  as  to  create  an 
apprehension  that  the  injury  may  be  inflicted,  and 
cause  the  person  threatened  to  resort  to  measures  of 
self-defense. 

§  633.  Justification  for  assault. — No  one  can  be 
held  to  be  guilty  of  an  unlawful  assault  who  has  a 
sufficient  justification  or  excuse  for  his  act,  as  where 
it  is  in  the  necessary  defense  of  his  person,  his  prop- 
erty, or  the  persons  to  whom  he  owes  the  duty  of 
protection,  as  wife,  child  or  servant.  As  we  have 
seen,  a  person  who  shoots  at  one,  believing  him  to 
be  another  person  whom  he  intends  to  kill,  is  guilty 
of  shooting  with  intent  to  kill,  and  shooting  or 
throwing  a  missile  into  a  crowd  is  an  assault  with 
intent  to  kill  or  injure  any  one  who  may  be  in  reach 
of  the  gun  or  the  missile  thrown. 


§634  CRIMINAL  OFFENS]  387 

§  634.   Barratry,  champerty  and  maintenance. — 

These  offenses  wore  all  punishable  at  common  law. 
Barratry  is  the  offense  of  frequently  stirring  up  quar- 
rels and  suits,  either  at  law  or  otherwise.  The  in- 
dictment should  charge  the  offender  with  being  a 
common  barrator,  and  there  must  be  proof  of  at 
least  three  instances  of  offending.  Champerty  is  a 
bargain  with  a  party  to  a  suit  for  a  portion  of  the 
land  or  other  matters  sued  for,  in  case  of  a  successful 
termination  of  the  suit  which  the  champertor  under- 
takes to  carry  on  at  his  own  expense.  Contracts  by 
attorneys  for  purely  contingent  fees,  to  be  paid  out 
of  the  damages  recovered,  were  formerly  considered 
champertous  and  void,  but  they  are  looked  upon 
with  more  indulgence  now  and  the  practice  of  mak- 
ing such  contracts  is  common,  though  it  must  be 
admitted  that  they  have  a  pernicious  influence  on  the 
character  and  standing  of  attorneys  who  make  them. 
Where  such  contracts  exist  the  attorney  becomes,  in 
effect,  one  of  the  real  parties  to  the  action.  In  some 
states  it  is  held  that  the  purchase  and  sale  of  land  in 
litigation,  or  in  the  adverse  possession  of  another,  is 
a  champertous  contract  and  will  not  be  enforced. 
Maintenance  is  a  malicious,  or  at  least  officious,  in- 
terference in  a  suit  in  which  the  offender  lias  no  in- 
terest, to  assist  one  of  the  parties  to  it  against  the 
other  with  money  or  advice  to  prosecute  or  d< 
the  action,  or,  as  it  is  Otherwise  defined,  it  is  the  in- 
termeddling of  a  stranger  in  a  suit  for  the  purpose 
of  stirring  up  strife  and  continuing  the  litigation. 

§635.  Bestiality — Sodomy. — The  first  is  the  cop* 
ulation  of  man  or  woman  with  a  beast,  the  second  the 
unnatural  copulation  of  man  with  man  or  man  witli 


388  ELEMENTARY  LAW.  §  636 

woman.  Both  parties  are  guilty  of  sodomy  and  the 
consent  of  the  parties  is  no  defense.  These  crimes 
are  generally  spoken  of  as  the  abominable  and  detest- 
able crimes  against  nature,  and  as  crimes  not  to  be 
named  among  Christians. 

§  636.  Bigamy  or  polygamy. — One  already  mar- 
ried  and  having  husband  or  wife  living,  who  marries 
a  second  time,  is  guilty  of  bigamy.  These  are  statu- 
tory and  not  common  law  crimes.  If  the  first  mar- 
riage has  been  annulled  by  a  court  of  competent 
jurisdiction,  the  parties  are  free  to  contract  a  second 
marriage,  and  if  a  person  whose  husband  or  wife 
has  been  absent  for  a  certain  number  of  years  with- 
out being  known  by  such  person  to  be  living,  the 
person  whose  husband  or  wife  is  thus  absent  may  in- 
nocently contract  a  second  marriage.  Where  there 
has  been  no  valid  divorce  from  the  first  husband  or 
wife  and  a  second  marriage  is  contracted  on  the  ad- 
vice of  counsel  and  in  the  honest  belief  that  the  di- 
vorce is  valid,  it  is  generally  no  defense,  though  the 
supreme  court  of  Indiana  has  held  that  where  the  be- 
lief was  on  reasonable  grounds  after  due  inquiry,  it 
is  a  defense  to  a  criminal  prosecution. 

§  637.  Bribery. — Bribery  at  common  law  was  lim- 
ited to  the  giving  to  a  judge  or  other  officer  connected 
with  the  administration  of  justice  any  undue  reward 
to  influence  his  behavior  in  office.  A  better  defini- 
tion is  the  giving  or  receiving  of  a  reward  to  influ- 
ence any  official  act,  whether  of  a  judicial  officer  or 
not.  The  statutes  of  the  states  have  extended  the 
scope  of  the  crime  until  it  now  includes  judges, 
jurors,  election  officers,    voters,   legislators  and  all 


§G38  CRIMINAL  OFFENSES. 

public  officials  who  are  placed  in  responsible  stations 
to  perform  public  service. 

§  638.  Burglary. — Burglar}'  at  common  law  is  the 
breaking  and  entering  of  the  dwelling-hou.se  of  an- 
other in  the  night-time  with  the  intent  to  commit  a 
felony  therein.  There  must  be  some  breaking,  and 
if  the  entry  is  made  through  an  open  door  or  window 
the  offense  is  not  complete.  The  raising  of  a  el 
window  or  the  turning  of  the  knob  or  lifting  the 
latch  of  a  closed  door  is  sufficient.  So  if  there  is  an 
entry  through  an  open  door,  but  a  breaking  of  an 
inner  door,  it  is  sufficient.  There  must  be  a  break- 
ing of  some  part  of  the  house  ;  forcing  the  door  of  an 
area  wall  or  breaking  open  a  chest  or  trunk  in  the 
house  will  not  constitute  a  breaking.  If  one  with 
intent  to  commit  a  felony  knocks  at  a  door,  and  an 
inmate  opens  it  and  he  thus  gets  in,  it  is  a  construct- 
ive unlawful  breaking.  So  where  one  gains  admit- 
tance upon  a  false  pretense  of  having  business  with 
an  inmate,  or  by  collusion  with  the  servants  of  the 
household.  An  entry  is  essential,  but  the  slightest 
entry  is  sufficient.  If  any  part  of  the  bi  »<1  y  or  a  weapon . 
a  stick  or  anything  in  the  offender's  hands  is 
thrust  into  the  house  through  a  door  or  window 
which  has  been  broken,  it  will  constitute  an  entry. 
The  entry  need  not  be  at  the  same  time  as  the  break- 
ing, but  both  must  be  in  the  night.  Night  for  the 
purposes  of  this  crime  begins  when  daylight  enda 
and  when  countenances  can  not  be  easily  discerned, 
and  ends  when  there  is  sufficient  daylight  to  dis 
them.  The  building  broken  into  must  by  the  com- 
mon law  be  a  dwelling.  The  statutes  of  many  states 
have  included  stores  and  many  structures  not  used 


390  ELEMENTARY  LAW.  §  g39 

as  dwellings.  In  some  states  a  breaking  and  enter- 
ing in  the  day-time  with  intent  to  commit  a  crime  is 
declared  to  be  burglary.  The  intent  to  commit 
a  crime  must  exist.  Ordinarily  the  intent  of  the 
burglar  is  to  steal,  but  it  may  be  to  commit  any  other 
crime.  Whatever  the  intent  is  it  must  exist  at  the 
time  of  the  breaking  and  entering. 

§  639.  Cheating — False  pretenses. — Cheating  by 
false  pretenses  is  where  any  person  by  a  false  and 
fraudulent  representation  or  statement  of  an  existing 
or  past  fact,  made  with  a  knowledge  of  its  falsity 
and  with  intent  to  deceive  and  defraud,  induces  an- 
other to  part  with  money  or  property  of  value.  It 
is  not  larceny  because  that  implies  that  the  owner's 
goods  were  taken  from  him  without  his  consent.  No 
mere  expressions  of  opinion  nor  promise  for  future 
conduct,  however  fraudulent  and  false,  will  amount 
to  a  false  pretense.  The  fraudulent  representation 
must  be  of  such  a  character  as  would  mislead  a  per- 
son of  ordinary  intelligence.  The  injured  party 
must  be  deceived,  the  representations  must  be  false 
and  must  be  believed  to  be  true  by  the  party  de- 
frauded. The  offender  must  fraudulently  intend  to 
obtain  the  property  and  to  deprive  the  owner  of  the 
use  of  it,  and  the  offense  is  not  complete  until  the 
owner  has  parted  with  his  property.  It  is  no  de- 
fense to  show  that  other  motives  influenced  the  owner 
in  part.  It  is  sufficient  if  the  fraudulent  and  false 
pretense  charged  were  a  part  of  the  moving  cause 
without  which  the  owner  would  not  have  parted  with 
his  property. 

§  640.    Conspiracy. — A  conspiracy  is   a  combina- 
tion of  two  or  more  persons,  by  some  concerted  action, 


§041  CRIMINAL  OFFENSES.  391 

to  accomplish  some  criminal  or  unlawful  purpose, 
or  to  accomplish  some  purpose  not  in  itself  criminal 
or  unlawful,  by  criminal  or  unlawful  means.  In 
many  states  conspiracy  is  indictable  as  a  common 
law  offense,  in  others  there  is  no  common  law  juris- 
diction of  the  offense. 

§  641.  The  agreement.— The  agreement,  whirl]  is 
an  essential  ingredient  of  the  crime,  may  be  exp 
or  implied,  and  its  existence  may  be  proved  by  cir- 
cumstantial evidence.  Anyone  who  enters  a  con- 
spiracy adopts  all  the  previous  acts  of  his  co-con- 
spirators in  forming  and  carrying  out  the  criminal 
purpose,  and  is  bound  by  all  that  is  done  by  them 
afterwards  unless  he  withdraws  and  renounces  his 
connection  with  it.  If  the  conspiracy  is  to  commit 
a  felony,  the  conspiracy  is  merged  in  the  consum- 
mated act.  The  mere  unlawful  agreement  constitutes 
the  crime,  whether  the  unlawful  purpose  is  accom- 
plished or  not.  All  parties  to  a  conspiracy  are  liable, 
in  a  civil  suit  for  damages,  to  the  injured  person. 

§  642.  Dueling. — Dueling  is  made  a  crime  by  the 
statutes  of  all  the  states.  If  death  ensues  all  the 
parties,  principals  and  seconds  are  guilty  of  murder. 
The  sending  or  carrying  of  a  challenge  to  fight  a 
duel  is  an  indictable  offense  in  most  of  the  states. 

§643.  Embezzlement.— Embezzlement  is  nol  a 
common  law  offense,  but  is  made  a  crime  by  state  stat- 
utes. It  is  like  larceny  in  its  effects  upon  the  owner. 
and  in  the  intent  of  the  offender,  but  it  differs  in  the 
important  particular  that  the  offender  comes  lawfully 
into  possession  of  the  money  or  thing  embezzled, 
the  criminal  act  being  the  fraudulent  and  unlawful 
appropriation  of  it  to  his  own  use.     Bail.,  b,  cashiers 


392  ELEMENTARY  LAW.  §  644 

or  tellers  of  banks,  clerks,  public  officers,  agents 
and  officers  of  corporations,  book-keepers,  in  short 
all  persons  entrusted  with  the  care  of  money  or 
property  belonging  to  others,  who  unlawfully  and 
with  fraudulent  intent  convert  it  to  their  own  use, 
are  embezzlers.  If  it  appears  that  the  money  or 
thing  taken  was  in  the  actual  or  constructive  posses- 
sion of  the  owner,  the  offense  would  be  larceny  and 
not  embezzlement. 

§  644.  Extortion. — Extortion  signifies  in  an  en- 
larged sense  any  oppression  under  color  of  right,  but 
in  a  stricter  and  more  accurate  sense  it  is  the  de- 
manding and  receiving  of  money  by  an  officer  by 
color  of  his  office,  either  where  none  is  due  or  where 
the  sum  demanded  and  received  is  in  excess  of  the 
amount  due.  It  is  an  offense  which  can  be  com- 
mitted only  by  officers,  whether  federal  or  state, 
ministerial  or  judicial.  One  who  acts  as  an  officer 
can  not  plead  in  defense  to  a  charge  of  extortion  that 
he  did  not  hold  the  office  rightfully.  The  most  com- 
mon form  of  the  offense  is  the  demanding  and  re- 
ceiving fees  for  official  services  in  excess  of  the 
amounts  fixed  by  law. 

§  645.  False  imprisonment. — False  imprisonment 
is  the  unlawful  restraint  of  a  person  contrary  to  his 
will,  either  with  or  without  process  of  law.  There 
must  be  a  forcible  detention  of  the  person,  and  the 
detention  must  be  unlawful.  An  officer  who  arrests 
and  holds  one  in  obedience  to  a  writ  directed  to  him 
from  a  court  of  competent  jurisdiction  is  not  guilty 
of  the  offense  unless  there  was  something  on  the  face 
of  the  writ  itself  showing  that  it  was  not  properly 
issued.    3 


§646  CRIMINAL  OFFENSES. 

§  640.  Forgery. — Forgery  at  common  law  is  the 
falsely  making  or  materially  altering  or  uttering 
with  intent  to  defraud,  any  instrument  in  writing 
which  if  genuine  would  impose  a  legal  liability. 
The  false  making  must  be  with  the  intent  that  it  shall 
appear  to  be  the  act  of  another,  and  with  the  intent  to 
defraud.  One  who  honestly  believes  that  he  has  the 
authority  to  sign  the  name  of  another,  or  to  make  a 
material  alteration  in  a  written  instrument,  is  not 
guilty  of  forgery  though  no  such  authority  existed  in 
fact.  While  the  intent  to  defraud  is  necessary,  it  is 
not  essential  that  the  party  intended  to  be  defrauded 
should  be  injured  thereby.  It  is  no  defense  for  the 
forger  to  say  that  his  work  was  done  so  blunderingly 
that  it  would  deceive  only  stupid  and  careless  per- 
sons. An  alteration  of  an  instrument  which  though 
intended  to  do  so  does  not  in  fact  ami  law  alter  the 
rights  or  obligations  of  the  parties  to  it  is  nol  a 
forgery,  though  the  party  making  it  did  so  with 
a  fraudulent  intent.  The  uttering  of  the  forged  in- 
strument is  complete  when  the  forger  by  words  or 
actions  declares  that  the  forget]  instrument  is  gen- 
uine with  a  knowledge  that  it  is  false.  By  the  stat- 
utes of  most  states  the  possession  of  forged  or  count- 
erfeit bank  notes  with  intent  to  utter  or  pass  them  is 
punishable  as  forgery. 

§  647.  Fornication. — Fornication  is  voluntary  il- 
licit sexual  intercourse  under  circumstances  doI  con- 
stituting adultery.  Single  aets  of  fornication  have 
been  made  criminal  in  some  states,  while  in  others 
it  is  punished  only  when  it  is  habitual  and  no- 
torious. 

§  648.    Homicide. — Homicide    is   the    killing  of    a 


394  ELEMENTARY  LAW.  §  649 

human  being,  and  it  may  be  a  lawful  and  an  inno- 
cent act  or  a  criminal  act.  Where  it  is  criminal  it  is 
designated  as  murder  or  manslaughter.  In  most  of 
the  states  there  are  grades  of  murder,  as  murder  in 
the  first  degree,  murder  in  the  second  degree. 

The  highest  grade  of  murder,  that  is,  murder  in 
the  first  degree,  is  the  unlawful  and  felonious  killing 
of  another  human  being  with  malice  aforethought. 
Murder  in  the  second  degree  is  like  murder  in  the 
first  degree,  except  that  it  lacks  the  premeditated 
design  which  is  essential  to  the  first,  it  being  the  in- 
tentional unlawful  killing  with  malice,  but  without 
premeditation. 

§  649.  Voluntary  manslaughter. — Manslaughter 
is  the  unlawful  killing  of  another  human  being  with- 
out malice,  and  is  either  voluntary  or  involuntary. 
Voluntary  manslaughter  is  where  the  act  causing 
death  is  committed  in  the  heat  of  sudden  passion 
caused  by  provocation.  There  must  be  a  purpose  to 
kill  or  to  inflict  serious  bodily  harm.  It  is  not  nec- 
essary that  the  passion  should  be  such  as  to  dethrone 
the  reason,  but  it  must  be  sufficient  in  degree  to  neg- 
ative the  idea  of  malice  in  the  slayer.  Whether  in  the 
particular  case  the  provocation  was  adequate,  or  the 
passion  excited  sufficient  to  rebut  the  idea  of  malice, 
is  for  the  jury  to  determine.  The  provocation  may 
consist  of  abusive  language,  or  an  unlawful  assault. 
And  where  two  engage  in  a  combat  with  or  without 
weapons  and  one  is  killed,  it  is  voluntary  man- 
slaughter, unless  the  combat  was  sought  by  one 
merely  as  a  pretext  for  killing  the  other. 

§  650.  Involuntary  manslaughter. — Involuntary 
manslaughter  is  the  unlawful  killing  of  a  human  be- 


§051  CRIMINAI/OFFENSES.  395 

ing  without  malice,  and  without  intent  to  kill 
inflict  the  injury  causing  death,  committed  acci- 
dentally in  doing  an  unlawful  but  not  felonious-  act, 
or  in  the  improper  or  negligent  doing  of  a  lawful 
act.  The  following  are  instances  of  involuntary  man- 
slaughter when  death  results: 

The  reckless  handling  and  discharge  of  fireai 
gross  carelessness  on  the  part  of  a  locomotive  engi- 
neer 01  the  master  of  a  vessel,  the  grossly  negligent 
use  of  defective  material  in  building  a  house,  reckless 
riding  of  a  horse  or  driving  a  vehicle,  cruel  and  im- 
moderate punishment  of  a  child  or  pupil. 

§651.  Justifiable  homicide. — Homicide  is  justi- 
fiable where  life  is  taken  by  the  proper  officer  in 
pursuance  of  the  lawful  sentence  of  a  court  adjudging 
the  execution  of  a  convict  ;  where  the  killing  is  in 
the  necessary  self-defense  of  the  person  of  the  slaver, 
or  of  a  husband  or  wife,  parent  or  child,  master  or 
servant,  or  a  man's  habitation  ;  where  it  is  neces- 
sary for  the  preservation  of  the  peace,  or  to  arrest  or 
prevent  the  escape  of  a  felon,  or  to  prevent  the  com- 
mission of  a  felony.  So  also  is  the  slaying  of  ene- 
mies in  time  of  war,  or  the  execution  of  persons 
guilty  of  certain  breaches  of  the  rules  of  military 
law.  In  cases  of  necessity  where  an  alternative  ex- 
ists between  two  or  more  lives  having  equal  rights, 
and  it  is  apparent  or  extremely  probable  that  one  or 
more  must  be  sacrificed  in  order  to  save  the  others, 
it  is  justifiable  to  take  such  life  or  lives.  In  the  case 
of  an  overloaded  boat,  where  the  sailors  threw  some 
passengers  overboard  to  lighten  the  vessel,  the  court 
♦  held  that  they  were  guilty  of  manslaughter,  and  that 


396  ELEMENTARY  LAW.  §  652 

in  such  an  extremity  the  victims  should  have  been  se- 
lected by  lot. 

To  justify  homicide  on  the  ground  of  self-defense 
the  accused  must  show  that  he  was  in  apparent  dan- 
ger of  losing  his  own  life,  or  of  suffering  grievous 
bodily  harm  at  the  hands  of  his  assailant.  It  may 
turn  out  that  the  danger  was  not  real,  but  if  the  con- 
duct of  the  assailant  was  such  as  to  create  in  the  mind 
of  the  person  assaulted  a  reasonable  apprehension  of 
danger  at  the  time,  it  is  sufficient.  The  same  rule 
applies  where  the  plea  is  urged  by  one  who  takes  life 
in  the  defense  of  those  to  whom  he  owes  the  duty  of 
protection. 

§  652 .  Malice. — Malice  and  the  intent  to  kill  are  es- 
sential ingredients  of  murder,  but  this  malice  does  not 
necessarily  involve  the  notion  of  ill  will  toward  the 
person  slain.  Where  by  one's  conduct  it  is  shown  that 
he  has  a  heart  regardless  of  social  duty  and  fatally 
bent  on  mischief,  malice  is  sufficiently  proved. 
Proof  of  a  formed  purpose  to  take  the  life  of  the  vic- 
tim is  sufficient  to  establish  the  existence  of  what  is 
called  malice  aforethought,  and  it  is  enough  if 
the  intent  to  kill  exists  at  the  moment  of  killing,  if  it 
is  deliberate.  The  jury  may  infer  malice  from  the  act 
and  manner  of  killing  where  it  is  unlawful,  and  it  is 
for  them  to  determine  from  all  the  circumstances 
whether  malice  in  fact  existed. 

§  653.  Incest. — Incest  is  sexual  intercourse  by  per- 
sons who  are  related  to  each  other  in  degrees  within 
which  marriage  is  prohibited  by  law.  It  is  a  crime 
unknown  to  the  common  law,  and  the  statutes  of  the 
different  states  must  be  consulted  to  ascertain  what 
constitutes  the  offense  in  any  given  locality. 


§654  CRIMINAL  OFFENSES.  397 

§  654.  Larceny. — Larceny  is  the  unlawful  taking 
and  carrying  away  of  the  personal  property  of  an- 
other with  the  intent  to  deprive  the  owner  thereof. 
Grand  larceny  and  petit  larceny  are  distinguished 
arbitrarily  by  the  value  of  the  property  taken,  as 
declared  by  the  statutes  of  the  various  states.  What 
is  grand  larceny  in  one  state  may  be  only  petit  lar- 
ceny in  another. 

§  655.  The  taking  must  be  secret  and  fraudulent, 
and  it  is  not  necessary  that  it  should  be  by  the  thief 
in  person.  If  the  thief  with  felonious  intent  induces 
an  innocent  person  to  take  the  personal  property  of 
another  and  deliver  it  to  him  it  is  an  unlawful  tak- 
ing. The  slightest  intentional  removal  of  the  article 
from  the  place  where  it  was  before  is  a  carrying 
away. 

§  656.  It  is  not  necessary  that  the  person  from 
whom  the  property  is  taken  should  be  its  absolute 
owner.  Any  rightful  possession  as  that  of  a  bailee 
having  a  qualified  right  of  property  would  be  owner- 
ship sufficient  to  support  a  charge  of  larceny.  Goods 
in  the  possession  of  an  agent  or  servant  of  another 
are  constructively  in  the  possession  of  the  owner  or 
master,  though  he  may  be  personally  ignorant  of 
their  existence  or  whereabouts.  If  possession  is  ob- 
tained lawfully  the  subsequent  carrying  away  with 
the  unlawful  intent  will  not  make  it  larceny.  The 
unlawful  intent  to  carry  away  and  convert  the  prop- 
erty must  exist  at  the  time  of  taking.  If  by  a  fraud- 
ulent trick  the  owner  is  induced  to  part  with  the 
possession  of  his  property  temporarily,  the  thief  in- 
tending to  appropriate  it  unlawfully,  it  is  larceny. 

§  657.    Libel. — Libel  is  made  criminal  by  the  laws 


398  ELEMENTARY  LAW.  §658 

of  some  states,  and  it  may  be  defined  to  be  the  willful 
and  malicious  publication  of  any  false  and  scandalous 
matter  tending  to  injure  the  reputation  of  another, 
or  to  hold  him  up  to  public  ridicule  and  contempt. 
In  most  states  the  injured  person  is  left  to  his  rem- 
edy at  law  by  means  of  a  civil  action  for  damages. 

§  658.  Malicious  trespass  or  malicious  mischief. — 
The  offense  is  ordinarily  limited  to  injuries  to  prop- 
erty, as  the  maiming  of  cattle  or  other  beasts, 
girdling  trees,  disfiguring  houses.  Malice  is  an 
essential  ingredient  of  the  offense  ;  but  where  the 
injury  is  willful,  malice  will  be  presumed.  It  is  es- 
sential that  damage  shall  have  resulted  to  the  prop- 
erty. 

§  659.  Mayhem. — Mayheni  at  common  law  was 
the  act  of  unlawfully  and  violently  depriving  an- 
other of  the  use  of  some  member  of  his  body  where- 
by he  was  rendered  less  able  to  fight.  A  mere  dis- 
figuring, such  as  cutting  off  an  ear  or  a  nose,  was 
not  mayhem  at  common  law.  By  statutes  in  England 
and  America,  the  definition  has  been  extended  so 
as  to  include  all  malicious  injuries  which  disable  or 
disfigure  the  injured  person.  It  must  be  intentional, 
and  an  injury  resulting  from  a  random  blow  or 
thrust  during  a  fight  will  not  constitute  mayhem, 
although  it  may  result  in  maiming  or  disfiguring 
the  injured  party.  There  must  be  the  specific  intent 
to  do  the  act  which  results  in  the  crippling  or  dis- 
figuring. 

§  660.  Nuisance. — Nuisance  is  a  common  law  of- 
fense and  consists  in  the  unlawful  doing  of  an  act, 
or  permitting  a  condition  of  things  to  exist  which  is 
prejudicial   to   the  health,  comfort,  safety,  property, 


§001  CRIMINAL  OFFENSES.  399 

sense  of  decency  or  morals  of  the  citizens  at  la 
and  it  may  be  an  act  unauthorized  by  law,  or  from 
neglect  of  a  duty  imposed  by  law.  To  carry  on  an 
offensive  trade  in  a  populous  community  ;  to  keep  a 
pig  sty  in  a  city  ;  to  allow  a  stable  in  a  city  to  be- 
come filthy  ;  to  disturb  the  public  rest  by  useless  and 
unlawful  noise  ;  to  pollute  streams  or  lakes  which 
supply  drinking  water  to  the  public  ;  to  keep 
a  disorderly  house,  and  other  such  acts,  constitute 
the  offense. 

§  661.  Perjury. — The  crime  of  perjury  as  de- 
scribed in  the  common  law  is  committed  where  a 
lawful  oath  is  administered  in  some  judicial  proceed- 
ings or  due  course  of  justice  to  a  person  who  swears 
willfully  and  absolutely  and  falsely  in  a  matter  ma- 
terial to  the  issue  or  point  in  question.  By  various 
statutes  the  offense  is  extended  to  false  swearing  in 
matters  not  connected  with  judicial  proceedings. 
The  crime  may  be  committed  by  a  witness  on  oral 
examination,  in  the  course  of  a  trial,  or  by  a  deposi- 
tion taken  before  an  officer  duly  authorized  to  take 
it,  or  by  an  oath  to  an  affidavit  to  be  used  at  any 
stage  of  the  judicial  proceedings  to  which  it  relates. 
The  form  of  the  oath  is  immaterial,  if  it  be  admin- 
istered in  such  a  way  as  to  bind  the  conscience  of 
him  who  takes  it  and  to  accord  with  his  religious 
belief. 

An  affirmation  taken  by  one  who  has  conscientious 
scruples  as  to  the  taking  of  an  oath  is  the  same  as  an 
oath,  and  one  who  falsely  affirms  is  as  much  a  per- 
jurer as  if  he  falsely  swears.  The  false  statement 
must  be  of  a  matter  material  to  the  subject  under 
consideration.     A  guilty  intent   is  necessary  to  per- 


400  ELEMENTARY  LAW.  §  6G2 

jury,  but  a  reckless  statement  under  oath  of  the  ex- 
istence of  a  fact  of  which  the  person  taking  the  oath 
had  no  knowledge  is  perjury,  although  the  state- 
ment sworn  to  may  be  true. 

§  662.  Piracy. — Piracy  is  robbery  on  the  high 
seas,  being  a  forcible  depredation  on  the  high  seas 
without  lawful  authority  and  done  in  the  spirit  and 
intention  of  universal  hostility.  Indictments  and 
trials  for  piracy  are  within  the  exclusive  jurisdiction 
of  the  federal  courts,  and  it  is  the  exclusive  province 
of  congress  to  say  what  acts  constitute  piracy. 

§  663.  Rape. — Rape  is  the  having  carnal  knowl- 
edge of  a  woman  forcibly  and  against  her  will.  Sex- 
ual intercourse  with  a  child  under  the  age  of  consent 
fixed  by  law,  with  an  insane  woman,  or  a  woman  in  a 
condition  in  which  she  can  not  consciously  consent, 
or  when  consent  is  extorted  by  fear,  is  rape,  though 
no  actual  force  be  used.  The  crime  is  not  complete 
unless  there  is  some  penetration  by  the  male  organ. 
It  is  no  defense  to  a  charge  of  rape  that  the  injured 
woman  is  a  prostitute,  though  her  evidence  would 
be  regarded  with  suspicion.  It  may  be  said  of  the 
crime,  generally,  that  it  is  a  charge  easily  made  and 
hard  to  disprove.  If  the  woman  be  of  good  repute 
and  make  seasonable  outcry,  and  show  signs  of  in- 
jury, and  the  place  where  the  crime  was  perpetrated 
be  remote  from  observation,  and  if  the  offender  flee 
to  avoid  arrest,  her  testimony  is  of  great  weight. 
A  male  under  the  age  of  fourteen  is,  in  many  states, 
conclusively  presumed  to  be  incapable  of  com- 
mitting the  offense  ;  in  other  jurisdictions  his  ability 
to  commit  the  crime  is  matter  for  proof. 

§  664.    Riot. — Riot  is  a  tumultuous  disturbance  of 


§  GU5  CRI M I X  A L  0  F  ■•■  E N S  ES .  401 

the  peace  by  three  or  more  persons  assembling  to- 
gether on  their  own  authority  with  an  intent,  mutu- 
ally, to  assist  one  another  against  any  one  who  shall 
oppose  them,  in  the  execution  of  some  enterprise  of 
a  private  nature,  and  afterwards  actually  executing 
the  same  in  a  violent  and  turbulent  manner,  to  the 
terror  of  the  people,  whether  the  act  accom- 
plished was  of  itself  lawful  or  unlawful.  The  act  is 
not  criminal  because  it  is  unlawful,  but  on  account 
of  the  violent  and  turbulent  manner  of  doing  it. 
There  must  be  three  or  more  guilty  parties,  and  if 
three  only  are  charged  and  two  are  acquitted,  the 
third  can  not  be  held  guilty.  An  agreement  to  par- 
ticipate in  the  enterprise  may  be  implied  from  the 
circumstances  and  conduct  of  the  parties.  1 

§  665.  Robbery. — Robbery  is  the  taking  with  fe- 
lonious intent  of  any  money  or  goods  of  any  value 
belonging  to  another  from  the  person  of  another,  or 
in  his  presence  against  his  will  by  force  or  violence 
or  by  putting  him  in  fear.  The  robber  must  take 
and  remove  the  property  taken,  the  thing  taken 
must  be  the  subject  of  larceny,  the  force  used  must 
be  before  or  at  the  time  of  the  taking  and  of  such 
character  as  to  make  it  evident  that  it  was  intended 
to  overpower  the  party  robbed  or  to  prevent  resist- 
ance on  his  part  and  not  merely  to  get  possession  of 
the  property.  The  mere  taking  the  property  from 
another  by  the  false  pretense  that  the  taker  is  an 
officer,  or  the  quiet  and  unobserved  picking  a 
pocket,  or  the  snatching  of  an  article  from  another's 
hands  when  there  is  no  struggle  or  resistance,  is  not 
robbery.  The  fear  must  be  such  as  would  intimidate 
"26 


402  ELEMENTARY  LAW.  §  666 

and  create  a  reasonable  apprehension  of  danger. 
The  person  robbed  need  not  be  the  owner  of  the 
property,  possession  is  enough.  If  the  accused  acted 
in  good  faith,  under  the  impression  that  the  property 
was  his  own,  there  is  no  robbery. 

§  666.  Seduction.— Seduction  is  the  enticing  by  a 
man  of  an  unmarried  woman  of  previous  chaste 
character,  by  means  of  persuasions  and  promises,  to 
have  sexual  intercourse  with  him.  Some  statutes 
require  the  promise  to  be  a  promise  of  marriage. 
Others  make  it  a  crime  to  debauch  and  seduce  an 
unmarried  female  of  previous  chaste  character  with- 
out regard  to  the  means  employed.  Where  the  con- 
sent is  given  merely  from  carnal  lust  and  the  inter- 
course is  from  mutual  desire,  there  is  no  seduction. 
If  the  woman  knew  the  man  to  be  married  she  will  not 
be  heard  to  say  that  she  consented  to  the  intercourse 
because  of  a  promise  of  marriage. 

§  667.  Treason  and  misprision  of  treason. — Trea- 
son against  the  United  States  is  where  a  person 
owing  allegiance  levies  war  against  them,  or  adheres 
to  their  enemies,  giving  them  aid  and  comfort.  The 
different  states  define  treason  in  substantially  the 
same  way.  Under  the  federal  constitution  no  person 
can  be  convicted  of  treason  unless  on  the  testimony 
of  two  witnesses  to  the  same  overt  act,  or  on  confes- 
sion in  open  court.  If  a  body  of  men  be  actually 
assembled  for  the  purpose  of  effecting  by  force  a 
treasonable  design,  all  those  who  perform  any  part, 
however  minute  or  however  remote  from  the  scene  of 
action,  and  who  are  actually  leagued  in  the  general 
conspiracy,  are  to  be  considered  traitors. 


§667  CRIMINAL  OFFENSES.  403 

It  is  the  duty  of  a  citizen  who  has  knowledge  of 
the  commission  of  treason  against  the  United  States 
to  disclose  the  same  to  the  president  or  a  judge  of 
the  United  States,  or  to  the  governor  or  some  judge 
or  justice  of  a  state,  and  the  failure  to  make  such 
disclosure  is  misprision  of  treason. 


CHAPTER  XLVII. 

CRIMINAL  PROCEDURE. 

§  668.  Arrest. — The  criminal  law  having  been 
violated,  the  question  arises,  how  shall  the  offender 
he  brought  to  punishment?  And  first,  of  arrest, 
which  is  the  taking  into  custody  an  alleged  of- 
fender, in  order  that  he  may  be  tried.  The  arrest 
may  be  made  by  an  officer  or  any  citizen  with  a 
warrant,  by  an  officer  or  citizen  without  warrant, 
by  any  person  upon  hue  and  cry. 

§  669.  Warrant  for  arrest. — A  warrant  is  a  writ 
directed  to  a  sheriff,  constable  or  officer,  or  other 
person  named,  requiring  him  to  apprehend  and 
bring  before  the  magistrate  or  court,  from  which  the 
writ  issues,  the  person  named  in  the  writ  as  the  of- 
fender. The  warrant,  when  issued  by  a  magistrate, 
is  based  upon  an  oath  made  by  some  citizen  charging 
the  person  named  therein  with  the  violation  of  some 
criminal  law.  When  issued  by  a  court,  it  is  based 
upon  an  indictment  found  by  the  grand  jury,  or 
upon  an  information  filed  by  the  public  prosecutor. 
It  is  the  duty  of  the  officer,  or  person  charged  with 
the  duty  of  serving  the  warrant,  to  make  the  arrest 
without  delay,  and  this  is  done  by  notifying  the  al- 
leged offender  named  in  the  warrant  that  he  is 
arrested.  It  is  proper  and  usual  to  lay  hands  on 
the  accused.      A  mere  touching   with  the  finger  is 

(404) 


§670  CRIMINAL  PROCEDURE,  405 

enough,  and  even  this  may  be  waived  by  the  de- 
fendant if  he  submits  to  arrest.  If  a  question  is 
raised  as  to  the  authority  of  the  officer  or  person 
making  the  arrest,  it  is  customary  for  him  to  show 
the  warrant,  though  this  is  not  necessary,  if  he 
state  the  substance  of  the  writ.  If  the  offender 
knows  the  person  to  be  an  officer,  no  further  notice 
is  required,  and  so  if  the  officer  exhibits  his  badge  of 
office. 

§  G70.  When  warrant  void  and  when  valid.— A 
warrant  issued  by  a  magistrate  or  court  which  has 
no  jurisdiction  of  the  offense  charged  gives  no  au- 
thority to  the  officer  or  person  named  to  make  the 
arrest.  It  must  appear  to  be  based  upon  some 
formal  accusation  made  before  a  competent  magis- 
trate or  tribunal,  and  to  charge  the  person  named 
therein  with  the  commission  of  a  specific  offense  ; 
and  it  must  bear  the  seal  or  signature  of  the  court  or 
magistrate  who  issued  it.  Mere  clerical  or  formal 
errors  are  immaterial  and  will  not  destroy  the  va- 
lidity of  the  writ.  If  an  officer  makes  an  arrest 
upon  a  void  and  illegal  writ,  he  does  so  at  his  peril, 
and  if  the  person  apprehended  is  innocent,  the 
officer  may  be  liable  in  damages  for  false  imprison- 
ment. 

§  671.  Arrest  by  officer  without  warrant. — An 
officer  is  in  duty  bound  to  arrest  for  felony  without 
warrant  whore  there  is  reasonable  ground  for  sus- 
pecting the  party  to  be  guilty.  If  a  crime  or  misde- 
meanor is  committed  in  his  presence,  he  has  no  dis- 
cretion but  must  arrest  the  offender.  If  he  is  in- 
•  formed  by  others  that  a  crime  has  been  committed 
he  must  act  with  discretion  and  prudence  and  upon 


406  ELEMENTARY  LAW.  §  672 

reasonable  grounds.  It  is  the  safer  course  always, 
when  time  will  permit,  to  delay  making  arrest 
upon  information  without  warrant  and  require  those 
making  the  complaint  or  charge  to  make  oath  to  it 
before  a  proper  magistrate.  The  question  in  all  such 
cases  for  the  officer  is,  has  he  good  grounds  to  be- 
lieve that  a  crime  has  been  or  is  about  to  be  com- 
mitted? 

§  672.  Arrest  by  private  person.— Private  persons 
who  are  called  upon  by  a  proper  officer  to  assist  in 
making  an  arrest  for  felony  must  obey,  and  it  is  an 
offense  against  the  law  to  refuse.  Incases  of  felonies, 
if  a  private  person  without  warrant  has  reasonable 
ground  to  suspect  an  other  of  being  the  guilty  party, 
he  may,  if  acting  without  malice  and  in  good  faith, 
make  the  arrest,  and  for  doing  so  he  is  not  liable 
civilly  or  criminally  if  the  arrested  person  proves  to 
be  innocent.  To  protect  a  private  person  who  makes 
an  arrest  for  felony  without  warrant,  it  is  necessary 
that  a  felony  should  have  been  committed,  and  that 
the  person  had  good  ground  to  believe  that  the  per- 
son arrested  was  the  guilty  party.  An  officer  is  pro- 
tected in  such  case  if  he  have  reasonable  ground  to 
believe  that  the  party  is  guilty,  whether  a  felony  has 
been  committed  or  not. 

§  673.  Arrest  upon  hue  and  cry.— If  a  crime  has 
been  committed  and  an  officer  or  people  are  in  pur- 
suit of  a  suspected  offender,  any  citizen  acting  in 
good  faith  may  apprehend  the  person  pursued  and 
keep  him  in  custody  until  he  has  opportunity  to  de- 
liver him  to  the  officers  of  the  law. 

§  674.  What  an  officer  may  do  in  serving:  warrant 
and  making  arrest. — An  officer  with  a  warrant  for 


§075  CRIMINAL  PROCEDURE.  407 

the  arrest  of  a  person  may  pursue  him  to  his  home, 
ami  if  necessary  he    may  break   down  the  doors.      A 
private  person  without  a  warrant,  who  has  good  rea- 
sons for  believing  that  one  has  committed  a  felony, 
may  use  the  same  force  in  making  the  arrest,  though 
if  the  party  arrested  prove  to  be  innocent  an  action 
for  damages  would  lie  against  the  persons  so  break- 
ing  open  doors  without  warrant.     Mere  suspicion  of 
guilt  will  not  justify  such  a  course  on  the  part  of  a 
private  person.     If  an  offender  secretes  himself    in 
the  house  of    another,  the  right  to  arrest  him  and  to 
use  force  is  the  same  as  if  he  were  in  his  own  house. 
Upon    proper    affidavits    magistrates    issue    search- 
warrants  for  stolen  goods,  and  an  officer  having  such 
a    warrant  may  break  open  doors,   trunks,    etc.,   in 
prosecuting   his  search.     Before  resorting    to    such 
violence,    however,   he  should  make  a  demand  for 
peaceful    entrance  and    for   the   keys    of    trunks  or 
chests  in  which  the  stolen  goods  are  suspected  to  be. 
§  675.    Extradition. — Where  one    who    has  com- 
mitted a  crime  in  one  state  flees  to  another,  his  arrest 
may  be  accomplished  by  means  of  a  writ  of  extra- 
dition.      This    writ  is  issued    by  authority    of    the 
state  where  the  fugitive  may  be  in  hiding,  upon  a 
formal   application  of    the  governor  of   the  state  in 
which  the  crime  was  committed.     The  extradition  of 
fugitives  from   justice  is  in  obedience  to  a  require- 
ment of  the  constitution  of  the  United  States,  which 
provides    that    a  person   charged   in   any   state  with 
treason,  felony,  or  other  crimes,  who  shall  flee  from 
justice  and  be  found  in  another  state,  shall,  on  de- 
mand of  the   executive   authority  of  the   state  from 
which  he  fled,  be  delivered  up,  and  be  removed  to 


408  ELEMENTARY  LAW.  §  676 

the  state  having  jurisdiction.  This  provision  in- 
cludes every  crime  punishable  in  the  state  making 
the  requisition.  The  person  who  takes  custody  of 
the  fugitive  for  the  purpose  of  bringing  him  to  the 
state  from  which  he  fled  is  not  necessarily  an  offi- 
cer. He  is  the  agent  of  the  state  making  the  de- 
mand and  is  named  in  the  requisition.  When  he 
has  custody  of  the  fugitive  it  is  his  duty  to  trans- 
port him  without  delay  to  the  state  and  county  where 
the  crime  was  committed  and  to  deliver  him  over  to 
the  proper  officer,  to  be  dealt  with  according  to  law. 

Fugitives  from  justice  who  seek  refuge  in  a  foreign 
country  are  delivered  up  according  to  the  stipulations 
of  the  treaties  made  upon  that  subject.  The  crimes 
for  which  such  fugitives  will  be  surrendered  to  the 
country  claiming  them  are  enumerated  in  the  treaties. 
No  civilized  country,  however,  will  deliver  up  a  fu- 
gitive who  is  charged  with  a  political  offense. 

§  676.  Examinations,  bail,  etc. — The  accused  be- 
ing in  custody  and  before  the  officer  or  court  having 
jurisdiction  of  the  case,  he  is  entitled  to  have  an 
examination  and  trial  in  due  course  of  law.  If  the 
offense  is  trivial,  the  magistrate,  mayor,  justice  of 
the  peace,  or  police  judge,  proceeds  promptly  to  hear 
the  case  and  assess  the  penalty.  In  such  cases  the 
judgment  is  final  unless  by  statute  an  appeal  to  a 
hfgher  court  is  allowed.  If  the  offense  is  of  a 
higher  grade  and  one  of  which  the  magistrate  who 
issued  the  writ  has  not  jurisdiction  to  try,  he  pro- 
ceeds in  a  summary  way  to  hear  the  evidence,  and 
if  a  case  of  probable  guilt  is  made  out,  he  requires 
the  accused  to  give  bail,  if  the  offense  be  bailable, 
for  his  appearance  before    the    court    having    final 


§077  CRIMINAL  PROCEDURE. 

jurisdiction,  to  answer  the  charge  ;  and  if  bail  is 
not  given,  the  accused  is  imprisoned  until  the 
charge  against  him  is  disposed  of  by  that  court. 
If  on  the  preliminary  examination  the  magistrate 
should  decide  that  the  evidence  did  not  establish  a 
case  of  probable  guilt,  the  accused  would  be  dis- 
charged. Such  a  discharge,  not  being  a  final  judg- 
ment, would  be  no  bar  to  subsequent  arrests  and 
trials  for  the  same  offense. 

§  677.  Right  to  speedy  trial — Presence  of  accused 
ill  court. — Where  bail  is  given,  or  the  accused  is 
imprisoned  by  the  examining  magistrate  for  want  of 
bail,  he  is  entitled  to  have  the  charge  against  him 
investigated  at  the  next  term  of  the  court  having 
jurisdiction.  If  no  indictment  is  found  against 
him  and  no  formal  charge  made  in  that  court,  he 
will  be  discharged.  When  the  indictment  is  found 
by  the  grand  jury,  or  an  information  is  filed  by  the 
prosecutor,  the  defendant  is  entitled  to  be  arraigned 
and  have  the  charge  read  to  him  in  open  court.  He 
can  waive  this  right  and  appear  and  plead  by  attor- 
ney if  he  pleases.  When  a  prisoner  is  in  custody, 
he  has  a  right  to  be  present  in  court  at  every  stage 
of  the  proceedings.  If  he  is  on  bail  and  voluntarily 
absents  himself  during  a  part  of  the  proceedings, 
such  absence  will  not  affect  the  validity  of  his  trial 
and  conviction. 

§  678.  Right  of  prisoner  to  have  counsel. — The 
right  of  the  prisoner  to  be  represented  by  counsel  is 
guaranteed  by  the  constitution  of  the  United  States 
and  by  the  constitutions  of  most  of  the  states.  If  he 
is  not  able,  or  refuses  to  employ  counsel,  the  court 
will    assign    some  attorney   to    appear  for  the  pris- 


410  ELEMENTARY  LAW.  §  679 

oner  and  conduct  his  defense.  An  attorney  who  is 
so  designated  by  the  court  is  bound  to  perform  the  duty 
assigned  him.  In  some  jurisdictions  the  attorney 
receives  no  compensation,  in  others  the  court  makes 
him  an  allowance  which  is  paid  out  of  the  public 
treasury,  as  other  court  expenses  are  paid. 

§  679.  Change  of  venue. — The  defendant  has  a 
right  to  be  tried  by  an  impartial  court  and  an  un- 
ju-ejudiced  jury.  If  it  is  shown  to  the  satisfaction  of 
the  court  by  proper  affidavits  that  the  local  prejudice 
in  the  place  where  the  prisoner  is  arraigned  for 
trial  is  so  great  that  it  would  be  impossible  to  give 
him  a  fair  trial,  the  place  of  trial  will  be  changed 
to  another  jurisdiction.  In  some  states  the  judge  has 
no  discretion,  but  must  award  the  change  when  ap- 
plied for  in  the  form  required  by  law.  In  other 
states  the  judge  may  allow  or  refuse  the  application 
at  his  discretion.  The  same  rules  apply  where  the 
prisoner  impeaches  the  partiality  of  the  judge  and 
demands  a  trial  before  an  unprejudiced  judge. 

§  680.  Application  for  continuance. — If  the  pros- 
ecutor or  defendant  is  not  read}'-  to  proceed  with  the 
trial  on  account  of  the  sickness  or  absence  of  im- 
portant witnesses,  the  court  will  grant  a  continu- 
ance. A  mere  statement  of  the  prosecutor  that  he  is 
not  prepared  to  proceed  is  usually  enough  to  procure 
a  continuance.  A  stricter  rule  is  applied  to  the  de- 
fendant who  in  order  to  procure  a  continuance  must 
show  to  the  court  by  affidavits  that  a  material  wit- 
ness or  witnesses  are  absent,  that  it  was  impossible 
by  the  exercise  of  reasonable  diligence  to  procure 
their  attendance,  that  he  has  reasonable  grounds  for 
believing  that  their  attendance  may  be  procured  if 


§031  CRIMINAL  PROCEDURE.  411 

time  is  given,  that  the  farts  he  expects  to  prove  by 
the  testimony  of  the  absent  witness  can  not  be  es- 
tablished so  well  by  any  other  available  wit:. 
In  extreme  cases  continuances  will  be  granted  on  ac- 
count of  the  sickness  of  the  defendant  or  his  counsel 
or  where  on  account  of  some  temporary  local  excite- 
ment it  would  be  prejudicial  to  the  defendant  to  be 
forced  to  trial.  An  improper  refusal  to  grant  a  con- 
tinuance is  an  error  which  will  reverse  a  case  in  the 
appellate  court  if  the  defendant  should  be  tried  and 
convicted.  Where  proper  affidavits  are  filed,  a  con- 
tinuance may  be  avoided  by  the  admission  of  the 
prosecutor  that  the  absent  witness  if  present  would 
testify  to  the  facts  set  forth  in  the  affidavits. 

§  681 .  Indictment  —  Information.  —  The  indict- 
ment is  a  written  accusation  charging  the  persons 
named  therein  with  the  commission  of  a  crime,  pre- 
sented on  oath  by  the  grand  jury.  An  information 
is  a  similar  charge  not  presented  by  the  grand  jury 
but  signed  by  the  prosecuting  officer.  In  substance 
they  are  the  same.  Each  must  charge  the  defendant 
named  with  a  specific  offense,  giving  time,  place, 
person  and  every  circumstance  so  as  to  inform  the 
accused  of  the  exact  nature  of  the  charge  he  is  to  an- 
swer. In  the  caption  the  state  and  county  in  which 
the  offense  was  committed  and  the  name  of  the  court 
should  appear.  The  indictment  must  be  signed  by 
the  prosecuting  attorney  and  indorsed,  "A  true 
bill,"  by  the  foreman  of  the  grand  jury.  If  a  single 
count  in  an  indictment  charges  two  distinct  crimes, 
it  will  be  bad  for  duplicity,  as  where  the  same  count 
contains  a  charge  of  murder  and  robbery.   Where  an 


412  ELEMENTARY  LAW.  §  682 

indictment  in  describing  the  offense  follows  sub- 
stantially the  language  of  the  statute,  it  is  sufficient. 

§  682.  Pleas  to  indictment. — Before  entering  his 
plea  to  the  charge  against  him,  the  defendant  may 
move  to  quash  the  indictment  or  information  for 
some  defect  apparent  upon  the  face  of  it,  as  if  it  does 
not  charge  the  offense  properly  or  is  not  signed  by 
the  prosecutor  or  indorsed  by  the  foreman  of  the 
grand  jury,  or  if  the  names  of  the  principal  witnesses 
for  the  prosecution  do  not  appear  upon  it,  or  if  the 
date  of  the  offense  as  charged  is  subsequent  to  the 
finding  of  the  indictment  or  the  filing  of  the  infor- 
mation, or  if  the  date  named  is  beyond  the  period 
prescribed  by  the  statute  of  limitations.  What  are 
and  what  are  not  sufficient  grounds  for  a  motion  to 
quash  is  ordinarily  determined  by  the  statutes  of  the 
states.  The  motion  to  quash  should  precede  the 
plea,  though  the  court  will  allow  a  plea  already  en- 
tered to  be  withdrawn  and  give  the  defendant  leave 
to  move  to  quash  the  indictment  or  information. 

§  683.  Arraignment. — The  arraignment  consists 
of  calling  the  prisoner  to  the  bar  by  name,  reading 
the  indictment  to  him,  and  asking  him  whether  he  is 
guilty  or  not  guilty  of  the  offense  charged.  When 
thus  arraigned  he  may  demur  to  the  indictment,  plead 
either  to  the  jurisdiction,  in  abatement,  a  former 
conviction  or  acquittal  of  the  same  offense,  a  pardon, 
or  not  guilty.  If  he  stands  mute  and  refuses  to 
plead,  the  court  will  order  a  plea  of  not  guilty  to  be 
entered.  If  the  defendant  pleads  guilty,  nothing 
remains  for  the  court  to  do  but  to  pass  sentence. 
The  plea  of  guilty  can  be  made  only  by  the  defend- 
ant in  person,  and  in  open  court.     The  plea  of  not 


§G84  CRIMINAL  PROCEDURE.  .j  1 3 

guilty   puts   in   issue  all    the  material  averments  in 
the  indictment  and  information. 

§  G84.  Jury  impaneling. — The  case  being  put  at 
issue  by  the  plea  of  not  guilty,  the  impaneling  of  the 
jury  comes  next  in  order.  Most  of  the  states  have 
special  statutes  directing  how  jurors  are  to  be  se- 
lected, and  how  and  for  what  causes  they  may  be 
challenged.  There  are  three  kinds  of  challenges, 
viz.:  challenge  to  the  array,  which  is  an  objection 
to  the  whole  body  of  jurors  returned  by  the  sheriff 
for  some  irregularity  or  misconduct  on  the  part  of 
the  sheriff ;  the  peremptory  challenge,  which  is  an 
objection  to  an  individual  juror  without  stating  any 
reason,  the  number  of  such  challenges  being  limited  by 
law  ;  the  challenge  for  cause,  which  is  an  objection 
to  an  individual  juror  on  account  of  bias,  partiality,  or 
the  existence  in  his  mind  of  a  prejudice  against  the 
defendant,  or  of  a  preconceived  opinion  of  his  guilt, 
there  being  no  limit  to  the  number  of  challenges  of 
this  kind.  The  jury  is  not  complete  until  twelve 
impartial  men  are  selected.  When  all  challenges 
are  exhausted  or  waived  and  the  panel  is  full,  th< 
jurors  are  sworn  in  open  court  to  try  the  case. 

§  685.  Opening  statements  of  counsel. — When  the 
jury  are  impaneled  and  sworn,  the  prosecuting  at- 
torney opens  the  case  by  stating  the  substance  of  the 
evidence  he  proposes  to  submit  to  the  jury.  This 
statement  should  be  full  and  candid,  so  as  to  notify 
counsel  for  defense  of  the  case  they  are  expected  to 
meet.  Then  follows  the  statement  for  the  defense, 
or,  if  counsel  prefer,  the  statement  for  the  defense  is 
postponed  until  the  evidence  for  the  prosecution  has 
been  put  in.     The  order  of  these  opening  addresses 


414  ELEMENTARY  LAW.  §  GSG 

is  a  matter  within  the  discretion  of  the  court,  except 
in  those  states  where  the  statutes  prescribe  it. 

§  686.  Examination  of  witnesses. — The  witnesses 
for  the  prosecution  are  then  called  and  examined. 
It  is  usual  for  one  counsel  only  to  conduct  the  direct 
examination,  and  one  to  conduct  the  cross-examina- 
tion of  each  witness.  This  is  a  matter  of  usage 
however,  regulated  by  the  practice  of  each  court. 
Upon  request  the  presiding  judge  will  allow  other 
counsel  in  the  case  to  interrogate  the  witness.  Arbi- 
trary rules  are  not  enforced,  the  object  being  to  get 
all  the  material  facts  before  the  jury,  and  the  judge 
is  allowed  a  large  discretion  in  determining  the  order 
in  which  the  evidence  is  to  be  introduced.  It  some- 
times happens  that  important  facts  are  within  the 
knowledge  of  a  witness  who  has  been  examined  and 
discharged,  and  which  was  not  elicited  upon  his  ex- 
amination. Where  this  appears  to  be  the  case  the 
court  may  allow  such  witness  to  be  recalled  by  the 
prosecution  or  defense,  even  after  it  has  been  an- 
nounced that  the  evidence  is  all  in. 

§  687.  Rules  of  evidence. — The  general  rules  of 
evidence  as  to  its  competency  and  relevancy  are  the 
same  in  criminal  as  in  civil  cases;  as  to  the  weight 
and  effect  of  the  evidence  the  rules  are  different.  A 
bare  preponderance  of  evidence  is  enough  to  estab- 
lish the  plaintiff's  right  to  recover  in  a  civil  case;  in  a 
criminal  case  every  material  allegation  in  the  indict- 
ment must  be  proved  beyond  a  reasonable  doubt,  and 
every  fact  necessary  to  establish  guilt  must  be  proved  in 
like  manner.  In  civil  cases  where  one  side  or  the  other 
has  produced  evidence  which  prima  facie  establishes 
a  given  fact,  the  burden  of  proof  shifts  to  the  party 


§633  CRIMINAL  PROCEDURE.  415 

against  whom  the  prima  facie  case  is  made;  in  criminal 
cases  the  burden  never  shifts,  the  presumption  of 
the  prisoner's  innocence  follows  and  shields  him 
throughout  the  case  until  the  measure  of  proof  es- 
tablishes his  guilt  beyond  a  reasonable  doubt.  In 
some  states  even  the  presumption  of  the  sanity  of  the 
accused  does  not  require  him  to  prove  his  insanity 
when  that  is  urged  as  a  defense.  It  is  incumbent  on 
the  state  to  establish  his  sanity  beyond  a  reason- 
able doubt,  though  the  general  rule  in  most  of  the 
states  puts  the  burden  of  establishing  the  defense  of 
insanity  upon  the  defendant.  So  where  the  defense 
of  self-defense  is  urged  in  behalf  of  one  on  trial  for 
homicide  or  assault  and  battery,  the  burden  of  proof 
is  upon  the  state  to  negative  it,  though  in  a  few 
states  a  contrary  rule  prevails.  The  same  may  be 
said  of  the  presumption  of  guilt  arising  against 
one  accused  of  larceny  from  the  possession  of  goods 
recently  stolen.  Where  the  state  undertakes  to  es- 
tablish the  guilt  of  the  accused  by  circumstantial 
evidence  consisting  of  a  chain  of  facts,  every  fact  es- 
sential to  the  continuity  of  the  chain  must  be  estab- 
lished beyond  a  reasonable  doubt.  The  rule  in  such 
cases  is  that  the  facts  proved  must  be  absolutely  in- 
consistent with  the  theory  of  the  innocence  of  the  ac- 
cused. 

§  688.  Special  rules  of  evidence  in  criminal 
cases. — There  are  some  other  special  rules  of  criminal 
evidence  which  should  be  noted.  The  dying  decla- 
rations of  the  victim  of  homicide,  if  made  when  death 
is  imminent  and  expected  by  the  victim,  are  compe- 
tent evidence  to  prove  the  circumstances  attending 
the  transaction,  the  name  of    the   slayer,  etc.     The 


416  ELEMENTARY  LAW.  §  689 

voluntary  confessions  of  the  accused  are  evidence 
against  him ;  when  made  in  open  court  they  are 
called  judicial  confessions,  and  when  made  elsewhere 
they  are  called  extra-judicial  confessions.  When 
an  accomplice  turns  state's  evidence  and  testifies 
against  his  confederates,  his  evidence  is  received, 
but  is  not  enough  to  establish  the  guilt  of  the  ac- 
cused unless  it  is  corroborated  by  other  witnesses  or 
other  facts  in  evidence.  When  two  accomplices  tes- 
tify, the  evidence  of  one  can  not  be  considered  as  a 
corroboration  of  the  evidence  of  the  other.  If  the 
accused  is  not  content  with  the  presumption  of  inno- 
cence which  the  law  allows  in  his  favor,  but  desires 
to  strengthen  it,  he  may  do  so  by  introducing  proof 
of  his  good  character.  When  he  does  so,  however, 
the  state  may  meet  it  by  contrary  proof. 

§  689.  Final  arguments  of  counsel. — When  the 
evidence  is  all  in,  counsel  address  the  jury.  They 
are  required  to  confine  themselves  to  a  discussion  of 
questions  of  fact,  for  the  court  is  to  charge  the  jury 
as  to  the  law  of  the  case.  The  jury  are  bound  by 
their  oaths  to  find  the  facts  according  to  the  evidence 
as  given  by  the  witnesses  and  the  law  as  given 
to  them  by  the  court.  In  some  states,  however, 
the  law  makes  the  jury  the  judges  of  the  law  as 
well  as  the  facts,  and  where  this  is  the  case,  counsel 
have  a  larger  liberty  and  may  argue  to  the  jury  that 
the  law  is  different  from  that  which  is  given  to  them 
by  the  court.  The  cases  are  rare,  however,  in  which 
counsel  resort  to  this  practice.  It  is  common  prac- 
tice in  the  English  courts  and  in  the  federal 
courts  for  the  presiding  judge  to  comment  upon  and 
sum  up  the  evidence  in  his  charge,  but  this  is  sel- 


§G90  CRIMINAL  PROCEDURE.  417 

dom  done  in  the  state  courts,  where  the  statutes  gen- 
erally require  the  judge,  when  so  requested,  to  sub- 
mit his  instructions  to  the  jury  in  writing. 

§  690.  Conduct  of  jury— Verdict.— The  rules  reg- 
ulating the  conduct  of  the  jury  after  they  retire  to 
deliberate  upon  their  verdict  and  as  to  the  manner  of 
signing  and  returning  the  verdict  into  court  are  the 
same  in  criminal  as  in  civil  cases.  The  defendant 
has  a  right  to  demand  that  the  jury  be  polled,  which 
is  done  by  calling  each  juror  by  name  and  asking 
him  if  the  verdict  signed  by  the  foreman  is  his  ver- 
dict. If  any  one  of  the  twelve  answers  in  the  nega- 
tive the  whole  jury  are  sent  to  their  room  for  further 
deliberation.  When  it  is  returned  into  court  the  ver- 
dict is  recorded  by  the  clerk. 

§  091.  Motion  for  new  trial — Arrest  of  judgment 
— Execution. — After  verdict  the  defendant  may  move 
for  a  new  trial:  ( 1 )  For  newly-discovered  evidence, 
when  it  is  made  to  appear  that  the  defendant  by  the 
exercise  of  due  diligence  could  not  have  produced  it 
at  the  trial,  that  the  newly-discovered  evidence  is 
material  and  not  merely  cumulative,  that  is,  tending 
to  make  further  proof  of  a  fact  upon  which  some 
evidence  was  produced  at  the  trial  ;  (2)  irregularity 
in  summoning  the  jury  ;  (3)  misconduct  of  jurors  ; 
(4)  tampering  with  jurors;  (5)  bias  or  hostility  of 
jurors,  which  was  unknown  to  defendant  when 
they  were  accepted  and  sworn  ;  (6)  that  the  verdict 
was  contrary  to  evidence;  (7)  that  the  verdict  was 
contrary  to  law.  If  the  motion  for  a  new  trial  is 
denied,  the  defendant  may  move  in  arrest  of  judg- 
ment, and  to  sustain  this  motion  he  must  show  that 


418  ELEMENTARY  LAW.  §691 

there  are  defects  in  the  record  of  the  proceedings 
which  are  not  cured  by  the  verdict.  If  these  motions 
are  denied  sentence  is  pronounced  and  the  judgirent 
of  the  court  is  executed,  unless  upon  appeal  or  writ 
of  error  a  higher  court  reverses  the  judgment. 


INDEX. 

[References  are  to  sections."] 

A 

ABATEMENT, 

pleading  in,  554. 
ABDUCTION,  627. 
ABORTION,  625. 
ABSOLUTE  RIGHTS,  40. 
ABUSE  OF  PROCESS,  303. 

ACCEPTANCE  OF  BILL  OF  EXCHANGE,  232. 
ACCESSORIES,  618. 
ACCOMPLICE, 

evidence  of,  687. 
ACCORD  AND  SATISFACTION,  600. 
ADEQUACY  OF  CONSIDERATION,  252. 
ADMINISTRATOR, 

how  appointed,  180. 

rights  and  duties  of,  180. 

de  bonis  non,  180. 

with  the  will  annexed,  181. 

promise  under  statute  of  frauds,  262. 

sales  of  land  by,  180,  181. 
ADMIRALTY, 

origin  and  history,  582. 

jurisdiction,  583. 

procedure,  584. 
ADMISSIONS, 

when  evidence,  565. 
ADULTERY,  626. 

as  ground  for  divorce,  449. 
ADVANCEMENT,  601. 

(419) 


420  INDEX. 

[References  are  to  sections."] 
ADVERSE  POSSESSION,  147. 

deed  of  lands,  so  held,  160. 
ADVOWSON,  70. 
AFFRAY,  628. 
AGENT, 

contracts  by,  206. 

who  may  be,  206. 

can  not  assume  incompatible  duties,  206. 

how  appointed,  206. 

generally  can  not  delegate  authority,  206,  209. 

authority  of,  how  ascertained,  207,  208. 

private  instructions  to,  by  principal,  208. 

ambiguous  authority,  208. 

acts  in  excess  of  authority,  208. 

declarations  of,  as  evidence,  208. 

when  authority  ceases,  209. 

liability  of  to  principal,  209. 

promissory  notes  of,  238. 

frauds  of,  358. 
AIDS  UNDER  FEUDAL  SYSTEM,  88,  100. 
AIDING  AND  COUNSELING  IN  CRIMES,  610. 
ALIENS, 

rights  of,  22. 

contracts  of,  195. 

ALLODIAL  ESTATES,  83,  109. 
ALLUVIAL  DEPOSITS,  60. 
AMBASSADORS, 

crimes  of,  624. 

privilege  from  arrest,  296,  297. 
AMPHICTYONIC  COUNCIL,  13. 

ANIMALS, 

injury  to,  436. 

trespass  on  lands,  437. 

duty  of  owner  at  common  law,  438. 

duty  of  owner  in  United  States,  439. 

remedies  for  trespasses,  440. 

injuries  by,  when  not  trespassing  on  land,  441. 

vicious  and  dangerous,  441. 

owner's  knowledge  of  danger,  442. 
ANTENUPTIAL  AGREEMENTS.  132. 


[NDEX.  421 

[References  are  to  *ections.] 

APPEAL,  573. 

APPORTIONMENT  OF  RENT,  124. 

APPRENTICES,  471. 
APPURTENANCES, 

defined,  68. 
ARBITRATION,  599. 
ARGUMENTS  OF  COUNSEL, 

privilege  of,  324. 

in  civil  cases,  568. 

in  criminal  cases,  689. 

ARMS, 

right  to  bear,  335. 
ARRAIGNMENT,  683. 

ARREST, 

privilege  from,  296. 

for  crime,  290,  668. 

warrant  for,  669. 

by  officer  without  warrant,  292,  671. 

by  private  person,  292,  672. 

upon  hue  and  cry,  673. 

what  officer  may  do  in  serving  warrant,  293,  674. 
ARREST  OF  JUDGMENT,  571. 
ARSON,  629. 
ASSAULT,  281,  630. 

ability  and  intent  to  injure,  282. 
ASSAULT  AND  BATTERY  (and  see  Battery),  281-288,  631. 

justification  for,  286,  633. 
ASSAULT  WITH  INTENT,  632. 
ASSIGNMENT  OF  DOWER,  133. 
ASSIGNOR  OF  NEGOTIABLE  INSTRUMENT,  236. 
ATTACHMENT,  595.  596. 
ATTEMPTS  TO  COMMIT  CRIME,  609. 

ATTORNEY, 

fraud  of,  361 . 
at  law  and  in  fact,  206. 
in  fact,  deed  by,  167. 
contingent  fees  of,  634. 
AUCTIONEER,  206. 


422  INDEX. 

[References  are  to  sections.1] 

B 

BAIL,  676. 
BAILMENT, 

for  benefit  of  bailor,  bailee  or  both,  215. 
degree  of  care  required,  215. 
common  carrier,  215. 
innkeeper,  215. 
mechanic  or  artisan,  215. 
warehouseman,  215. 
pawnbroker,  215. 
BARRATRY,  634. 
BASE  FEE,  127. 
BASE  TENURE,  97. 
BATTERY, 

defined,  283,  631. 
intent  of  wrong-doer,  284. 
consent  of  injured,  285. 
justification  for,  286,  633. 
self-defense,  287. 
remedies  for,  288. 
BELLIGERENTS, 

rights  and  duties  of,  16. 
BEQUEST, 

title  by,  176. 
BESTIALITY,  635. 
BIGAMY,  636. 
BILL  OF  EXCHANGE,  227. 
foreign,  229. 
inland,  229. 
parties  to,  230. 
acceptance  of,  232. 
signatures,  234. 
BILL  OF  LADING,  242. 
BODIES  OF  DEAD,  177. 
BOUNDARY  LINES,  66. 
along  highways,  519. 
along  streams,  60. 
BRIBERY,  637. 
BROKER,  206. 


IN  DFX.  423 

[References  are  to  sections.'] 
BURDEN  OF  PROOF,  567. 
BURIAL  RIGHTS,  177. 
BURGLARY,  638. 

C 

CAPACITY  TO  COMMIT  CRIME,  604. 
CAPIAS,  598. 
CARELESSNESS, 
criminal,  612. 
CERTIORARI,  602. 
CHALLENGE  TO  JURY,  684. 
CHAMPERTY,  634. 

CHARACTER, 

evidence  of  in  criminal  cases,  687. 
CHEATING  BY  FALSE  PRETENSES,  639. 
CIRCUIT  COURTS  OF  APPEALS, 

jurisdiction,  538. 
CIRCUIT  COURTS  OF  THE  UNITED  STATES,  539. 

CITIZENSHIP, 

denned, 20. 

two  kinds  in  United  States,  20. 

rights  of,  how  guarded,  20. 

how  acquired,  21. 

of  corporations,  273. 

jurisdiction  of  United  States  courts,  when  dependent  on,  534. 

CIVIL  CODE  IN  LOUISIANA,  12. 

CIVIL  PROCEDURE, 

civil  actions,  548. 

officers  of  court,  548. 

actions,  how  commenced,  549. 

parties  to  actions,  549. 

process,  550. 

service  and  return  of  process,  551. 

matters  of  defense,  552. 

objections  to  jurisdiction,  553. 

answers  and  pleas  in  abatement,  554. 

issues  of  fact  and  of  law.  555. 

jury,  556. 

trial,  557. 


424  INDEX. 

[References  are  to  sections.] 
CIVIL  PROCEDURE—  Continued. 

evidence,  558. 

functions  of  court  and  jury,  559. 

judicial  notice,  560. 

presumptions,  560. 

written  and  oral  evidence,  561. 

attendance  of  witnesses,  562. 

competency  of  witnesses,  563. 

hearsay  evidence,  564. 

exceptions  to  rule  excluding  hearsay,  565. 

examination  of  witnesses,  566. 

burden  of  proof,  567. 

arguments  and  instructions,  568. 

deliberations  of  jury,  569. 

verdict,  569. 

motion  to  set  aside  verdict,  570. 

motion  for  new  trial,  570. 

motion  in  arrest  of  judgment,  571. 

forms  of  judgments,  572. 

appeals  and  writs  of  error,  573. 

execution,  574. 
CLERGYMEN, 

frauds  of,  363. 
CLERK  OF  COURT,  548. 
CODICIL,  154. 

COMMISSION  MERCHANT,  206. 
COMMON  RIGHT  OF,  72. 
COMMON  RECOVERIES,  129. 

COMMON, 

estates  in,  144. 
COMMON  CARRIER, 

duty  as   to  care  of  goods,  215. 

duty  as  to  passengers,  216. 

who  is  a  common  carrier,  215,  216. 

not  insurers  as  to  passengers,  216. 

may  make  and  enforce  rules,  216.     I 

act  of  God,  216. 
COMMON  LAW, 

of  United  States,  12,  36. 

yields  to  statutes,  29. 

defined, 32. 


INDEX.  425 

[References   are  to  sectioni."] 
COMMON  LAW—  Continued. 

where  found,  32. 

sources  of,  33. 

growth  of,  34. 

law  merchant,  a  part  of,  34. 
COMPOUNDING  CRIMES,  608. 
CONDITIONAL  FEE,  128. 
CONDITION, 

estates  upon,  134. 

implied,  135. 

expressed,  136. 
CONDITIONS  PRECEDENT,  137. 
CONDITIONS  SUBSEQUENT,  137. 
CONDITIONS, 

when  equity  will  relieve  against  forfeiture  for  breach  of,  137. 
CONFESSIONS,  687. 
CONFUSION, 

title  by,  176. 
CONSENT, 

to  abortion,  no  defense,  625. 

to  assault  and  battery,  285. 

to  taking  life,  277. 

meeting  of  minds  in  contracts,  191. 

in  rape,  663. 
CONSIDERATION, 

defined,  251. 

good  and  valuable,  251. 

moral  obligation,  251. 

adequacy,  252. 

prior  obligation,  253. 

part  payment  as,  253. 

mutual  releases  by  creditors,  254. 

disputed  claims,  255. 

impossible,  256. 

executed  and  executory,  257. 

past,  258. 

failure  and  want  of,  259. 

legal  and  illegal,  256,  259. 

of  promissory  notes,  240. 


426  INDEX. 

[References  are  to  sections.] 
CONSPIRACY, 

criminal,  640,  641. 

to  prevent  labor,  349. 

civil  remedies  for,  350. 
CONSTITUTION  OF  UNITED  STATES, 

power  of  supreme  court,  9. 
CONSTITUTIONS, 

what  they  are,  how  made  and  amended,  23. 

CONSTRUCTION, 

effect  of  contemporaneous,  31. 

of  criminal  statutes,  605. 
CONTEMPT,  593,  594. 

CONTINGENT  FEES  OF  ATTORNEYS,  634. 
CONTINGENT  REMAINDER,  138. 
CONTINUANCE  IN  CRIMINAL  CASES,  680. 

CONTRACTS, 

law  of  place  of,  fixes  rights  of  parties,  18. 

contract  and  status,  182. 

law  of  place  of  suit  determines  mode  of  redress,  18. 

growth  of  right  to  contract,  182,  183 

definition,  184. 

capacity  of  parties,  185. 

void  and  voidable,  186. 

executed  and  executory,  187. 

written,  188. 

parol,  189. 

express,  190. 

meeting  of  minds  in,  19L. 

time  of  contract,  192. 

implied  contract,  193. 

quasi  contracts,  193. 

illegal  in  whole  or  part,  186. 

impossible,  186. 

of  record,  194. 

parties  to,  195. 

of  infants,  195-200. 

of  insane,  195.  202. 

of  state,  195. 

of  aliens,  195. 

for  necessaries  by  infant,  197. 

executed,  of  infant,  199. 


INDEX.  427 

[References   are  to  sections.] 
CONTRACTS—  Continued. 
frauds  of  infants,  199. 
disaffirmance  of  by  infant,  200. 
ratification  of,  by  infant,  200. 
duress,  201. 
of  guardians,  202. 

drunkenness  as  affecting  contracts,  203. 
of  married  woman,  204. 
of  corporations,  205. 
by  agents,  206. 
by  ship's  husband,  207. 
by  ship's  master,  207. 
authority  of  agent,  207,  208. 
acts  in  excess  of  authority,  208. 
private  instructions  to  agent,  208. 
ambiguous  authority  of  agent,  208. 
declarations  of  agents,  208. 
when  authority  ceases,  209. 
of  sale  and  exchange,  210-213. 
warranty,  211. 

specific  performance  of,  when  not  enforced,  211. 
transfer  of  title,  212. 
delivery,  213. 
interpretation  of,  214. 
bailment,  215. 
of  common  carriers,  216. 
of  partnership,  217-226. 
bills  of  exchange,  227-234. 
promissory  notes,  227-241. 
bills  of  lading,  242. 
insurance,  243-250. 
consideration,  251-259. 
statute  of  frauds,  260-270. 
CONVENTIONAL  LAW  OF  NATIONS,  14. 
COPYRIGHTS,  494. 

CORPOREAL  PROPERTY  DEFINED,  53. 
CORPORATIONS, 
defiintion,  271. 
public,  271. 
private,  271. 
quasi  corporations,  271. 
joint  stock  companies.  271. 


428  INDEX. 

[References  are  to  sections."] 
CORPORATIONS—  Continued. 

powers  of,  272. 

organization  of,  273. 

citizenship  of,  273. 

charter  of,  274. 

vested  rights  of,  275. 

dissolution  of,  276. 

doing  business  in  other  states,  17. 

deeds  by,  166. 

contracts  of,  205. 

frauds  of,  360. 
COUNSEL, 

prisoner's  right  to  be  heard  by,  678. 

arguments  of,  568,  689 

opening  statements,  685. 

COURTS, 

in  England  and  United  States,  3. 

functions  of,  35. 

under  feudal  system,  85. 

modern,  529-574. 

jurisdiction  denned,  530. 

federal,  531-544. 

senate  as  a  court,  532. 

judicial  circuits  and  districts,  533. 

judicial  power  of  United  States,  534. 

exclusive  jurisdiction  of,  535. 

concurrent  with  state  courts,  536. 

jurisdiction  of  supreme  court,  537. 

jurisdiction  of  circuit  courts  of  appeals,  538. 

jurisdiction  of  circuit  courts,  539. 

jurisdiction  of  district  courts,  540. 

jurisdiction  of  court  of  claims,  541. 

jurisdiction  of  court  of  private  land  claims,  542. 

United  States  commissioner,  543. 

territorial  courts,  544. 

courts  of  District  of  Columbia,  544. 

state  courts,  545-547. 

jurisdiction  of  state  courts,  546. 

officers  of,  548. 

procedure  of  in  civil  cases,  548-574. 

procedure  in  criminal  cases,  668  to  691. 


[NDEX.  429 

[Reference*  are  to  sections.] 

CREDITORS, 

rights  under  feudal  law,  91. 

of  decedent,  181. 

of  partnership,  223. 

of  individual  partners,  223. 

CRIME, 

defined,  603.  . 

CRIMINAL  LAW, 

crimes  in  United  States,  603. 

capacity  to  commit,  604. 

statutes,  how  construed,  605. 

infamous  crimes,  606. 

classification  of,  607. 

compounding,  608. 

attempts,  609. 

aiding,  counseling,  etc.,  610. 

intent  and  overt  act,  611. 

criminal  carelessness,  612. 

ignorance  and  mistake  of  fact,  613. 

ignorance  of  law,  614. 

self-defense,  615. 

offenses  by  wives,  616. 

principal  and  agent,  617. 

principal  and  accessory,  618. 

drunkenness,  619. 

insanity,  620. 

punishment,  621. 

jurisdiction  in,  622,  623. 

jurisdiction  of  sovereigns  and  ambassadors,  624. 

CRIMINAL  OFFENSES, 
abortion,  625. 
adultery,  626. 

abduction  and  kidnaping,  627. 
affray,  628. 
arson,  629. 
assault,  (530. 

assault  and  battery,  631. 
assault  with  intent,  632. 
barratry,  634. 
champerty,  634. 
maintenance,  634. 


430  INDEX. 

{References  are  to  sections.] 
CRIMINAL  OFFENSES—  Continued. 
bestiality,  635. 
sodomy,  635. 
bigamy,  636. 
polygamy,  636. 
bribery,  637. 
burglary,  638. 
cheating,  639. 
false  pretenses,  639. 
conspiracy,  640. 
dueling,  642. 
embezzlement,  643. 
extortion,  644. 
false  imprisonment,  645. 
forgery,  646. 
fornication,  647. 
homicide,  648. 

manslaughter,  voluntary,  649. 
manslaughter,  involuntary,  650. 
incest,  653. 
larceny,  654. 
libel,  657. 

malicious  trespass,  658. 
malicious  mischief,  658. 
mayhem,  659. 
nuisance,  660. 
perjury,  661. 
piracy,  662. 
rape,  663. 
riot.  664. 
robbery,  665. 
seduction,  666. 
treason,  667. 
misprision  of  treason,  667. 

CRIMINAL  PROCEDURE,  668-691. 
CURTESY, 

tenant  by,  131. 
CUSTOMS, 

as  part  of  common  law,  12-38. 

origin  of,  38. 


INDEX.  431 


[References  are  to  sections.] 
CUSTOMS—  Continued. 

definition  and  kinds  of,  39. 
different  from  usage,  39. 
requisites  of,  39. 

D 

DAMAGES, 

for  injuries  causing  death,  280. 

for  assault  and  battery,  288. 

for  false  imprisonment,  295. 

for  malicious  prosecution,  304. 

special,  in  defamation,  311,  331. 

for  libel  and  slander,  331. 

contemptuous,  331. 

compensatory,  331. 

exemplary,  331. 

general,  331. 

aggravation  of,  331. 

mitigation  of,  331. 

for  fraud,  382. 

for  nuisance,  403. 

for  negligence,  420. 

for  infringing  trade-marks,  497. 

for  wrongs  to  personal  property,  507. 

for  wrongs  to  real  property,  517. 

DAY,  122. 

DAYS  OF  GRACE,  122. 

DEATH, 

recovery  for  injuries  causing,  280. 

DEBTS, 

effect  of  war  upon,  16. 

law  of  place  of  contract,  18. 
DECEDENTS'  ESTATES,  178-181. 
DEDICATION, 

of  right  of  way,  73. 

statutory  and  common  law,  73. 

DEED, 

capacity  of  parties,  163. 
quitclaim,  158. 
warranty,  158. 


432  INDEX. 

[References  are  to  sections."] 
DEED—  Continued. 

special  warranty,  158. 

how  executed,  158,  163. 

delivery  of,  158. 

title,  bond  for,  158-159. 

forms  of,  161. 

by  owners  not  in  possession,  160. 

recording  of,  162. 

of  guardians,  164. 

of  partners,  165. 

of  corporations,  166. 

by  officers,  168. 

by  attorney  in  fact,  167. 

description  of  land  in,  169. 
DEFAMATION,  305-331. 
DELIVERY, 

when  essential  to  pass  title,  213. 

of  part,  213. 

to  agent  or  carrier,  213. 

symbolical,  213. 

place  of,  213. 

escrow,  158. 
DEPOSITIONS,  561. 
DESCENT, 

what  law  governs,  19. 

title  by,  150. 

statutes  of,  179. 
DESCRIPTION  OF  LAND  IN  DEED,  169. 
DEVISE, 

executory,  140. 

title  by,  152. 
DEVISEE, 

right  to  enter,  181. 
DISTRESS,  123. 

DISTRICT  COURTS  OF  UNITED  STATES,  540. 
DIVORCE,  449. 
DOMESDAY  BOOK,  89. 
DOMICILE  OF  INTESTATE, 

law  of,  fixes  rule  of  distribution,  19. 


INDKX.  433 

[References  are  to  sections."]  • 

DOWER, 

estate  of,  132. 

at  common  law,  132. 

how  barred,  132. 

assignment  of,  133. 

in  lands  sold  by  husband,  163. 
DRAWEE  OF  BILL  OF  EXCHANGE,  230. 
DRAWER  OF  BILL  OF  EXCHANGE,  230. 
DRUNKENNESS, 

as  affecting  contracts,  203. 

in  negligence,  415. 

in  frauds,  362. 

in  crimes,  619. 
DUELING,  642. 
DURESS, 

defined,  201. 

contracts  under,  201. 

as  affecting  negligence,  414. 
DYING  DECLARATIONS,  565,  687. 

E 

EASEMENTS, 

defined,  76. 

bow  acquired,  76. 

how  lost,  76. 

license  is  not,  76. 
EMBEZZLEMENT,  643. 
EMBLEMENTS,  117,  120. 
EMANCIPATION  OF  INFANT,  196,  453. 
EMINENT  DOMAIN, 

title  by,  170. 

basis  of,  170. 

who  may  obtain,  170,  171. 

proceedings  to  acquire,  172. 

may  be  without  jury,  172. 

compensation  must  be  made  to  owner,  172. 

statute  for  acquiring  must  be  followed  strictly,  172. 

proceedings  not  suits  at  common  law,  172. 

28 


434  INDEX. 

[References  are  to  sections."] 
ENTIRETY, 

estate  by,  143. 
EQUITY  AND  PROCEEDINGS  IN  EQUITY, 

equity  jurisdiction,  575,  576. 

prohibitory  injunction,  577. 

mandatory  injunction,  577. 

general  scope  of  equity  jurisdiction,  578. 

full  relief,  579. 

suit  in  equity — pleadings,  580. 

evidence  in  equity,  581. 

hearing  in  equity,  581. 

decree  in  equity,  581. 

bill  of  review,  581. 
ESCHEAT, 

denned,  106. 

title  by,  173. 
ESCROW,  158. 
ESCUAGE,  90. 
ESTATES, 

allodial,  83. 

defined, 111. 

fee-simple,  112. 

fee  in  abeyance,  113. 

for  life,  115-119. 

for  years,  120. 

at  will,  125. 

at  sufferance,  126. 

base  fee,  127. 

conditional  fee,  128. 

in  tail,  129-130. 

by  curtesy,  131. 

in  dower,  132,  133. 

upon  condition,  134-137. 

implied,  135. 

expressed,  136. 

in  remainder,  138. 

rule  in  Shelley's  Case,  139. 

executory  devises,  140. 

in  reversion,  141. 

in  severalty,  142. 


index.  435 


[References  are  to  sections.] 
ESTATES—  Continued. 

in  common,  144. 

in  joint  tenancy,  143. 

by  the  entirety,  143. 

of  decedents,  178. 
ESTOPPEL,  382. 
EVIDENCE, 

conclusive,  denned,  558. 

prima  facie,  denned,  558. 

tending  to  prove,  denned,  558. 

competent,  denned,  558. 

sufficient,  denned,  558. 

corroborative,  denned,  558. 

cumulative,  defined,  558. 

relevant,  defined,  558. 

admissible,  defined,  558. 

proper,  defined,  558. 

material,  defined,  558. 

direct,  defined,  558. 

circumstantial,  defined,  558. 

preponderance  of,  defined,  567. 

functions  of  court  and  jury,  559. 

judicial  notice,  560. 

presumptions,  560. 

written  and  oral,  561. 

attendance  of  witnesses,  562. 

competency  of  witnesses,  563. 

privileged  communications,  563. 

hearsay,  564,  565. 

admissions,  565. 

examination  of  witnesses,  566. 

dying  declarations,  565,  687. 

burden  of  proof,  567. 

in  equity  cases,  581. 

declarations  of  agents,  208. 

rules  of,  in  criminal  cases,  687. 

confessions,  687. 

special  rules  of,  687. 

accomplice,  evidence  of,  687. 

character,  evidence  of,  687. 
EXAMINATION, 

preliminary,  676. 

of  witnesses,  686. 


436  INDEX. 

[References  are  to  sections."] 
EXECUTED  CONTRACT  OF  INFANT,  199. 
EXECUTIVE, 

functions  of,  7. 

duties  of,  343. 

liability  of,  343. 
EXECUTION, 

civil,  574. 

criminal,  691. 
EXECUTORS, 

appointment  of,  etc.,  181. 

promises  under  statute  of  frauds,  262. 
EXECUTORY  DEVISES,  140. 
EXECUTORY  CONTRACTS,  187. 
EXPATRIATION, 

right  of,  20. 
EXPRESS  CONTRACT,  190. 
EXTORTION,  644. 
EXTRADITION,  675. 

EXTRAORDINARY  REMEDIES  AND  SPECIAL  PROCEED- 
INGS, 

mandamus,  585,  586. 

quo  warranto,  587,  588. 

prohibition,  589. 

habeas  corpus,  590-592. 

contempt,  593,  594. 

attachment,  595,  596. 

garnishment,  597. 

capias,  598. 

arbitration,  599. 

accord  and  satisfaction,  600. 

partition,  601. 

certiorari,  602. 

F 

FACTOR,  206. 

FALSE  IMPRISONMENT, 

defined,  289. 

detention  or  restraint,  290. 

unlawfulness,  291. 


INDEX.  437 


[References  are  to  sections.] 
FALSE  IMPEISONMENT—  Continued. 

restraint  without  process,  292. 

restraint  under  legal  process,  293. 

restraint  by  officers,  294. 

remedies,  295. 

privilege  from  arrest,  296,  297. 

criminal,  645. 
FALSE  PRETENSES, 

cheating  by,  639. 
FEDERAL  COURTS, 

what  laws  judicially  noticed  by,  18. 

jurisdiction  and  procedure  of,  531-544. 

FEE-SIMPLE, 

estate,  111,  112. 
in  abeyance,  113. 

FEE, 

conditional,  123. 

base,  127. 

tail,  130. 
FELLOW-SERVANTS,    ' 

defined,  487. 
FEUDAL  SYSTEM, 

origin  and  nature,  82. 

fiefs  and  feuds,  82,  91. 

abolition  of,  92. 
FINES,  105. 
FIXTURES, 

as  between  landlord  and  tenant,  63.  ] 

as  between  vendor  and  vendee,  63. 

as  between  heir  and  executor,  64. 

requisites  of,  64. 
FOREIGN  BILLS  OF  EXCHANGE,  229. 
FORFEITURE, 

relief  against,  137. 
FORGERY,  646. 
FORNICATION,  647. 
FRANCHISES,  78. 
FRANK  TENEMENT,  98. 


438  INDEX. 

[References  are  to  sections.] 
FRAUD, 

statutes  against,  liberally  construed,  29. 

of  infant,  198. 

in  insurance  contracts,  246. 

in  sales  of  personal  property,  211. 

kinds  of,  351. 

in  confidential  relations,  353. 

husband  and  wife,  353. 

parties  engaged  to  marry,  354. 

illegal  sexual  relations,  355. 

parent  and  child,  356. 

by  trustees,  357. 

principal  and  agent,  358. 

partners,  359. 

by  corporations,  360. 

attorneys,  361. 

physicians,  361. 

clergymen,  361. 

persons  of  weak  mind,  362. 

between  equals,  363. 

fraud  defined,  364. 

by  silence,  365. 

equal  opportunities,  366. 

elements  of  fraud,  367. 

representations  and  warranty,  368. 

clearness  and  certainty,  369. 

matters  of  law,  370. 

opinions,  371. 

matters  of  fact,  372. 

promises,  373. 

materiality,  374. 

falsity,  375. 

wrong-doer's  knowledge,  376. 

wrong-doer's  intent,  377. 

who  entitled  to  rely,  378. 

representations  must  be  acted  upon,  379. 

injured  person's  belief,  380. 

damages,  381. 

remedies  for  fraud,  382. 

personal  injuries  through,  383. 


INDEX.  439 

[References   are  to  sections."] 
FRAUDS,  STATUTE  OF,  260-270. 

history  of,  260. 

provisions  of,  261. 

promises  of  executors  and  administrators,  262. 

debt,  default  and  miscarriage  defined,  263. 

collateral  obligation,  264. 

agreements  in  consideration  of  marriage,  265. 

contracts  for  sales  of  lands,  266. 

agreements  not  to  be  performed  within  a  year,  267. 

note  or  memorandum,  268. 

signature  to  memorandum,  269. 

sale  of  goods,  270. 
FREE  SOCAGE,  98. 
FREE  TENURE,  97. 
FREEDOM, 

of  speech,  336. 

of  press,  336. 

religious,  338. 

G 

GARNISHMENT,  597. 
GIFT, 

title  by,  176. 
GOODS, 

sale  under  statute  of  frauds,  270. 
GOOD-WILL,  226,  497. 
GUARANTOR, 

defined,  236. 
GUARDIAN'S  DEED,  164. 
GUARDIAN  OF  INSANE,  469. 

contract  of,  202. 
GUARDIAN  AND  WARD, 

who  is  guardian,  461. 

different  kinds  of,  461. 

natural,  462. 

testamentary,  463. 

legal— rights  and  duties  of,  464. 

guardian  ad  litem,  465. 

next  friend,  466. 


440 


INDEX. 


[References  are  to  sections."] 
GUARDIAN  AND  WARD— Continued. 

right  of  guardian  and  ward  in  each  other,  467. 
wrongs  between  guardiaH  and  ward,  468. 
guardian  of  insane  person,  469. 
deeds  of,  164. 

H 

HABEAS  CORPUS,  590-592. 
constitutional  provisions,  45. 

HEALTH, 

right  to,  46. 
HEARSAY  EVIDENCE,  564,  565. 
dying  declarations,  565,  687. 

HEIRS, 

use  of  word  in  deeds  and  wills,  114.  . 

HEREDITAMENTS, 

incorporeal,  69. 
HIGHWAYS, 

lands  bounded  by,  59,  67. 

dedication  of,  73. 

obstruction  of,  395. 

what  is  a  highway,  396. 

purprestures,  397. 

what  is  an  obstruction,  398. 

duration  of  obstruction,  399. 

objects  near  highway,  400. 

authorized  obstruction,  401. 
HOLDER  OF  BILL  OR  NOTE,  231. 

duty  of,  232. 
HOLIDAY, 

legal,  122. 
HOMAGE,  86. 
HOMICIDE, 

murder  in  first  degree,  648. 

murder  in  second  degree,  648. 

voluntary  manslaughter,  649. 

involuntary  manslaughter,  650. 

justifiable,  651. 

malice,  652. 

dying  declarations,  565,  687. 


INDEX.  441 


[References  are  to  sections.} 

HUSBAND  AND  WIFE, 
marriage,  444-447. 
duties  and  rights  of,  448. 
divorce,  449. 
injuries  between,  450. 
injuries  by  third  persons,  451. 
antenuptial  agreements,  132. 
dower,  132. 

assignment  of  dower,  133. 
frauds,  353. 
crimes,  616. 
polygamy,  636. 

I 
IGNORANCE, 

of  fact,  372,  613. 
of  law,  370,  614. 
ILLEGAL  CONTRACT,  186. 
ILLEGITIMATE  CHILDREN, 
inheritance  by,  150. 
who  are,  452. 
IMPANELING  JURY,  684. 
IMPLICATION, 
repeal  by,  30. 
IMPLIED  CONTRACTS,  193. 
IMPLIED  LICENSE,  522. 

IMPLIED  REVOCATION  OF  WILLS,  153-157. 
IMPOSSIBLE  CONTRACTS,  186. 
INADEQUACY  OF  CONSIDERATION,  252. 
INCEST,  653. 

INCORPOREAL  PROPERTY,  69-81. 
definitions,  53,  69,  490,  491. 
kinds,  69. 
wrongs  to,  490-497. 
statutory  provisions,  492. 
patents,  493. 
copyrights,  494. 

rights  independent  of  statute,  495. 
private  letters,  496. 
trade-marks,  497. 


442  INDEX. 

[References  are  to  sections.} 

INCREASE, 

title  by,  176. 
INDIANS, 

titles  of,  57. 

injustice  to,  58. 
INDICTMENT  AND  INFORMATION,  681. 
INDICTMENT, 

pleas  to,  682. 
INDORSEMENT,  231. 

special,  233. 

in  blank,  233. 
INDORSER, 

denned,  236. 
INFAMOUS  CRIME,  606. 
INFANCY, 

a  personal  privilege,  199. 
INFANTS, 

contracts  of,  195,  196. 

emancipation  of,  196,  453. 

frauds  of,  198,  356. 

frauds  upon,  356. 

negligence  of,  416,  434. 

parent  and  child,  452-460. 

guardian  and  ward,  461-469. 

suits  by,  464-466. 

recovery  for  death  of,  280. 

capacity  to  commit  crime,  604. 

INJUNCTION, 

when  granted,  577. 

prohibitory,  577. 

mandatory,  577. 

temporary,  577. 

perpetual,  577. 

against  defamation,  330. 

against  unlawful  combinations,  350. 

frauds,  382. 

nuisance,  430. 

patents,  492. 

copyrights,  495. 


INDEX.  443 

[References  are  to  sections.'] 
INJUNCTION— Con  tin  ued. 

trade-marks  and  names,  497. 

personal  property,  507. 

real  property,  517. 
INLAND  BILLS  OF  EXCHANGE,  229. 

INSANE, 

contracts  of,  202. 

frauds  against,  362. 

guardian  of,  469. 

negligence  of,  414,  430. 

crimes  of,  620. 
INSURANCE, 

contract  of,  definition,  243. 

parties,  243. 

may  be  by  parol,  243. 

what  may  be  insured,  243. 

form  of  contract,  244. 

interpretation  of,  245. 

warranty  and  representation  distinguished,  246. 

fraud  in,  246. 

premium,  payment  of,  247. 

waiver  of  payment  of  premium,  248. 

insurable  interest,  249. 

increase  of  risk,  250. 
INSTRUCTIONS,  568. 

INTENT, 

in  crimes,  611. 

in  assault  and  battery,  282,  284. 

in  malicious  prosecution,  299. 

in  defamation,  319. 

in  fraud,  377. 

in  nuisance,  387. 

in  negligence,  409. 
INTERNATIONAL  LAW, 

origin  of,  13. 

how  enforced,  13. 

conventional  law  of  nations,  14. 

rights  of  neutrals,  15. 

rights  of  belligerents,  16. 
INTERPLEADER,  215,  578. 


444 


INDEX. 


[References  are  to  sections."] 
INTERPRETATION, 

what  is  and  office  of,  28. 

rules  of,  28. 

of  penal  statutes,  28. 

of  remedial  statutes,  28. 

of  statutes  in  pari  materia,  28. 

of  statutes  against  frauds,  28. 

of  statutes  in  derogation  of  common  law,  28. 

technical  words,  28. 

preamble  and  title,  when  considered,  31. 

effect  of  contemporaneous,  31. 

proviso,  how  regarded,  31. 

of  contracts,  214. 

of  insurance  contracts,  245. 

of  libel  and  slander,  317. 
INTERSTATE  LAW,  17-19. 
INTESTATE  AND  TESTATOR,  178. 

domicile,  law  of,  as  to  property,  19. 

ISLANDS, 

ownership  of,  61. 
ISSUES  OF  FACT  OR  LAW,  555. 
JOINT  TENANCY,  143. 
JUDGMENT, 

title  by,  176. 

arrest  of,  571. 

notwithstanding  verdict,  571. 

forms  of,  572. 

by  confession,  572. 

by  default,  572. 

upon  nonsuit,  572. 

upon  demurrer,  572. 

upon  verdict,  572. 

interlocutory,  572. 

final,  572. 

in  malicious  prosecutions,  300,  301. 

JUDICIAL  NOTICE,  560. 
JUDICIAL  OFFICERS, 

liability  and  privilege  of,  324,  344. 
JUDICIAL  LEGISLATION,  35. 


INDEX.  445 

[References  are  tv  sections.'] 

JURISDICTION, 

defined,  344,  530. 

of  United  States  supreme  court,  537. 

of  circuit  courts  of  appeals,  538. 

of  circuit  courts  of  United  States,  539. 

of  district  courts  of  United  States,  540. 

of  court  of  claims,  541. 

of  court  of  private  land  claims,  542. 

of  state  courts,  546. 

concurrent  of  state  courts  and  United  States  courts,  536. 

objections  to,  how  and  when  made,  553. 

in  equity,  575. 

of  crimes,  622,  623. 
JURY,  556,  559,  569. 

empaneling,  684. 

conduct  in  criminal  cases,  690. 

verdict  of,  690. 
JUSTIFICATION, 

for  assault  and  battery,  286,  633. 

in  defamation,  320. 

K 

KIDNAPING,  627. 

KIN, 

next  of,  recovery  for  injuries  causing  death,  280. 

KIND, 

rents  payable  in,  79. 

KING, 

lord  paramount,  95,  96. 

KNIGHT  SERVICE,  99. 

L 

LAND, 

defined,  59. 

bounded  by  streams,  60. 

extent  of,  65. 

boundary  line  of,  66. 

bounded  by  highways,  67. 

wrongs  to,  508-528. 

contract  for  sale  under  statute  of  frauds,  266. 

deeds  of  lands  held  adversely,  560. 


446  INDEX. 

[References  are  to  sections.] 
LARCENY,  654-656. 

LAWS, 

in  general,  1-12. 

necessity  for,  1. 

human,  2. 

and  morals,  4. 

of  the  United  States,  3,  10-12. 

of  England,  3. 

municipal,  defined,  4. 

rules  of  law,  object  of,  6. 

duty  to  obey,  8. 

kinds  of,  in  United  States,  10. 

written  and  unwritten,  10-12,  23-39. 

international,  13-19. 

interstate,  17,  18. 

judicial  notice  of,  18. 

merchant,  origin  of,  34,  228. 

of  place,  18,  237. 

of  forum,  fixes  mode  of  redress,  18. 

misrepresentation  of,  370. 
LEADING  QUESTIONS,  566. 
LEGAL  RIGHTS,  40. 
LEGATEE,  181. 
LEGISLATURE, 

functions  of,  7. 

privilege  of,  323. 

liability  of,  342. 
LIBEL  IN  ADMIRALTY,  584. 
LIBEL  AND  SLANDER,  306,  331. 

slander  defined,  307. 

slander  imputing  crime,  308. 

slander  imputing  disease,  309. 

slander  affecting  office,  etc.,  310. 

slander  actionable  by  reason  of  special  damages,  311. 

slander  of  title,  312. 

libel  defined,  313,  314. 

rights  of  newspapers,  315. 

publication  of  words,  316. 

construction  of  words,  317. 

certainty  in,  318. 


INDEX.  447 


[References  are  to  sections.] 
LIBEL  AND  SLANDER— Continued. 

malice  in,  319. 
justification  in,  320. 
privilege  in,  321. 
absolute  privilege,  322. 
legislative  proceedings,  323. 
judicial  proceedings,  324. 
naval  and  military  matters,  325. 
qualified  privilege,  326. 
matters  of  public  interest,  327. 
communications  under  duty,  328. 
communications  in  self-defense,  329. 
remedies,  330. 
damages,  331. 
criminal,  657. 

LICENSE, 

not  an  easement,  76. 

to  enter  upon  land,  522. 
LIEN, 

how  created,  80,  81. 

statutory,  80. 

equitable,  80. 

by  contract,  81. 

common  law,  81. 
LIFE, 

right  to,  43,  277. 

when  may  be  taken,  278. 

civil  remedies  for  unlawful  taking,  279,  280. 

estates  for,  115. 

rights  of  life  tenant,  116. 

self-defense,  287,  611. 

insurance  of,  243-250. 
LIMITED  PARTNERSHIP,  225. 
LIMITATIONS, 

statute  of,  17,  146,  147. 
LORD, 

paramount,  95. 

middle,  96. 
LUNATICS, 

contracts  of,  195,  202. 

See  Insanity. 


448  INDEX. 

[References  are  to  sections.] 

M 

MAINTENANCE,  634. 
MALICE, 

in  libel  and  slander,  319. 

criminal,  652. 
MALICIOUS  PROSECUTION,  298-304. 

elements  of,  298. 

motive,  299. 

want  of  probable  cause,  300. 

termination  of,  301. 

of  civil  actions,  302. 

abuse  of  process,  303. 

remedies  for,  304. 
MALICIOUS  TRESPASS,  658. 
MANDAMUS,  585,  586.      . 
MANDATORY  INJUNCTION,  577. 
MANSLAUGHTER, 
«     voluntary,  649. 

involuntary,  650. 
MARRIAGE, 

right  of,  under  feudal  system,  84,  104. 

title  by,  149. 

agreements  for,  under  statute  of  frauds,  265. 

defined,  444. 

illegal,  445. 

ceremony  of,  446. 

foreign,  447. 
MARRIED  WOMEN, 

contracts  of,  204. 

crimes  of,  616. 

torts  of,  448. 

wrongs  to,  450,  451. 

defense  of,  287. 
MASTER  AND  SERVANT,  470-489. 

growth  of  relation,  470. 

apprentices,  471. 

who  is  master  or  servant,  472. 

independent  contractor,  473. 

contract  between  master  and  servant,  474. 


[NDEX.  449 

[References  arc  to  MCt/ioni."] 
MASTER  AND  BERVANT—  Continued. 

termination  of  relation,  475. 

discharge  by  master,  476. 

abandonment  by  servant,  477. 

wrongs  growing  out  of  relation  independent  of  contract,  478. 

liability  of  third  persons  to  master,  479. 

liability  of  third  persons  to  servant,  480. 

liability  of  master  for  injury  to  others,  481. 

intentional  and  unintentional  injuries,  482. 

liability  of  servant  for  injuries  to  others,  483. 

master's  liability  to  servant,  484. 

duties  of  master  to  servant,  485. 

risks  assumed  by  servant,  486. 

fellow-servants,  487. 

vice-principal,  488. 

servant's  liability  to  master,  489. 

MAYHEM,  659. 
MEETING  OF  MINDS,  191. 
MEMORANDUM, 

under  statute  of  frauds,  268. 

signature  to,  269. 
MIDDLE  LORDS,  96. 
MILITARY  SERYICE, 

feudal  system,  87. 
MISPRISION  OF  TREASON.  667. 
MIXED  PROPERTY,  53. 
MORALS  AND   LAW,  4. 
MODERN  TENURES   107. 
MONTH,  122. 
MORTGAGES,  137. 
MOTION  FOR  NEW  TRIAL,  691. 
MUNICIPAL  LAW,  4. 

rules  of,  6. 
MURDER,  648. 


29 


450  INDEX. 

[References  are  to  sections.} 

N 

NATIONS, 

law  of,  13-19. 
NATURALIZATION, 

under  laws  of  the  United  States,  21. 
under  state  laws,  21. 
NATURAL  RIGHTS,  40,  41. 
NAVIGABLE  STREAMS, 
jurisdiction  over,  583. 
as  boundaries,  60,  66. 
torts  on,  583. 
NECESSARIES, 

what  are,  197. 
NEGLIGENCE,  405-435.     ! 
actionable,  405. 
in  contract  or  tort,  406. 
elements  of,  407. 
definition,  408. 
inadvertence,  409. 
inevitable  accident,  410. 
ordinary  care,  411. 
no  degrees  in,  412. 
acts  or  omissions,  413. 
acts  of  irresponsible  persons,  414. 
intoxication,  415. 
of  persons  physically  infirm,  416. 
the  person  to  whom  duty  is  owing,  417. 
the  duty,  418. 
duty  implied  by  law,  419. 
damages,  420. 
cause  and  effect,  421. 
legal  connection  of,  cause  and  effect,  422. 
proximate  cause,  423. 
plaintiff's  own  conduct,  424. 
plaintiff's  unlawful  act,  425. 
contributory  negligence,  426. 
tests  of  contributory  negligence,  427. 
plaintiff's  knowledge  of  danger,  428. 


INDEX.  451 

[References  are  to  sections.] 
NEGLIGENCE— Continued. 

danger  incurred  to  save  life  or  discharge  duty,  429. 
persons  of  defective  powers,  430. 
misleading  conduct,  431. 
imputable  negligence,  432. 

passenger  and  carrier,  imputed  negligence  of,  433. 
children,  imputed  negligence,  434. 
presumptions  as  to  negligence,  435. 
criminal,  612. 
NEGOTIABLE  INSTRUMENTS,  227-242. 
NEUTRALITY,  15. 
NEWSPAPERS, 
libels  by,  315. 
liberty  of  press,  336. 
NEW  TRIAL, 

civil  cases,  570. 
criminal  cases,  691. 
NEXT  FRIEND  OF  INFANT,  466. 
NOTICE  OF  PROTEST,  232. 
NUISANCE, 

how  related  to  negligence,  384. 

defined,  385. 

coming  to  a  nuisance,  386. 

intent  or  motive  in,  387. 

care  or  negligence  in,  388.  m 

what  may  be,  389.  ,« 

kinds  of,  390. 

public,  391.  n 

private,  392. 

mixed,  public  and  private,  393.  ,- 

authorized,  394. 

obstructing  highways,  395-402. 

special  injury,  402. 

remedies,  403. 

evidence  of,  404. 

to  real  property,  516. 

criminal,  660. 

NUNCUPATIVE  WILLS,  154. 


452  INDEX. 

[References  are  to  sections."] 

0 

OBSTRUCTION  OF  HIGHWAYS,  395-402. 
OCCUPANCY, 

title  by,  146. 

title  to  personal  property  by,  176. 
OCCUPYING  CLAIMANT, 

rights  of,  148. 

OFFICERS, 

deeds  by,  168. 

military,  arrest  by,  292. 

peace,  arrest  by,  292,  294. 

performance  of  duties  of,  341. 

OFFICES  AND  DIGNITIES,  77. 

OPINIONS, 

when  frauds,  371. 

OWNERSHIP, 

basis  of,  50. 
private,  51. 

P 

PARAVAIL, 

tenant,  96. 
PARENT  AND  CHILD,  452-460, 

rules  of  descent,  150,  151,  453. 

defense  of,  287. 

right  to  punish,  286. 

right  to  restrain,  292. 

legitimate  and  illegitimate  child,  452. 

rights  and  duties  of  parent  and  child,  453. 

emancipation,  196,  453. 

wrongs  between  parent  and  child,  454. 

wrongs  by  third  persons,  455. 

child's  interest  in  parent,  456. 

parent's  interest  in  child,  457. 

physical  injuries  to  child,  458. 

enticing  away  child,  459. 

seduction  of  child,  460. 

frauds  of,  356. 


INDEX.  453 

[References  are  to  sections.'] 
PAROL  CONTRACT,  189. 

evidence,  561. 
PARTIES, 

to  actions,  549. 

to  contracts,  195-209. 
PARTITION, 

proceedings  for,  601. 
PARTITION  FENCES,  76. 
PARTNERS, 

deeds  of,  165. 

as  agents,  206. 

frauds  of,  359. 

promissory  notes  of,  238. 

imputed  negligence,  432. 
PARTNERSHIP, 

definition,  217. 

partners  agents  for  one  another,  217. 

how  formed,  217,  218. 

silent  partner,  217. 

nominal  partner,  217. 

ostensible,  217. 

retiring  partner,  what  notice  necessary,  217. 

rights  and  powers  of  partners  before  dissolution,  218. 

rights  and  powers  of  partners  after  dissolution,  218,  224. 

how  dissolved,  220. 

winding  up  of  business  of,  221. 

dissolution  by  death,  222. 

creditors  of,  223. 

creditors  of  individual  partner,  223. 

limited,  225. 

good  will,  226. 

promissory  note  of,  238. 
PARTY  WALLS,  76. 
PATENT  RIGHTS,  493. 
PAYEE,  230. 

PENAL  STATUTES, 
how  construed,  28. 
PERJURY,  661. 


454  INDEX. 

[References  are  to  sections."] 
PERSON, 

security  of,  42,  277. 

liberty  of,  44. 
PHYSICIAN, 

frauds  of,  361. 

privilege  of,  563. 
PERSIANS, 

ancient  custom  on  death  of  king,  1. 
PERSONAL  PROPERTY,  53,  175-177. 

descent  of,  19. 

title  to,  how  acquired,  176. 

occupancy,  176. 

accession,  176. 

confusion,  176. 

gift,  176. 

bill  of  sale,  176. 

succession,  176. 

bequest,  176. 

operation  of  law,  176. 

sales  by  executors,  administrators,  etc.,  176. 

judicial  and  execution  sales,  176. 

burial  rights,  177. 

wrongs  to,  498-507. 

trespass  by  force,  499. 

possession,  500. 

the  force,  501. 

conversion,  502. 

conversion  by  persons  rightfully  in  possession,  503. 

demand  for  possession,  504. 

conversion  by  tenants  in  common,  505. 

taken  by  legal  process,  506. 

remedies  for  wrongs  to,  507. 
PIRACY,  662. 
PLACE, 

law  of,  fixes  rights  of  parties  to  contract,  18,  237. 
PLEADINGS, 

complaint  bill  or  declaration,  549. 

pleas  and  answers  to  jurisdiction,  552,  553. 

demurrers,  552. 

confession  and  avoidance,  552. 


INDEX.  455 


[References  are  to  sections.'} 
PLEADINGS— Continued. 

abatement,  553. 

in  equity,  580. 

in  admiralty,  584. 

mandamus,  586. 

quo  warranto,  587,  588. 

prohibition,  589. 

habeas  corpus,  591. 

partition,  601. 
POLICY  OF  INSURANCE,  243. 
POLYGAMY,  636. 

POSTHUMOUS  CHILD, 

effect  of  birth  to  revoke  will,  155. 
PRECEDENT, 

condition,  137. 
PRECEDENTS, 

importance  of,  37. 
PREMIUM, 

in  insurance  contract,  247. 

waiver  of  payment  of,  248. 
PRESUMPTIONS,  560. 
PRIMER  SEIZIN,  102. 
PRINCIPAL  AND  AGENT.    See  Agent. 

frauds  of,  358. 

crimes  of,  617. 
PRINCIPAL  AND  ACCESSORY,  618. 
PRIVATE  LETTERS,  496. 
PRIVATE  OWNERSHIP,  51,  52. 
PRIVILEGE, 

from  arrest,  who  may  claim,  296. 

in  libel  and  slander,  34. 
PRIVILEGED  COMMUNICATIONS,  328,  361,  563. 
PRIZE  FIGHTING,  628. 
PROCESS,  550,  551. 

abuse  of,  303. 
PROHIBITION, 

writ  of,  589. 


456  INDEX. 

[References  are  to  sections.] 
PROMISES, 

when  frauds,  373. 
PROMISSORY  NOTE,  227-241. 

definition  of,  227. 

negotiability,  228. 

protest,  232. 

indorsement,  233,  236. 

signature  to,  234. 

certainty,  235. 

surety,  236. 

guarantor,  236. 

assignor,  236. 

law  of  place,  237. 

of  agents,  238. 

of  partners,  238. 

capacity  of  parties,  239. 

consideration  of,  240. 

innocent  purchaser,  241. 

PROOF, 

kinds  of,  558, 
PROPERTY, 

right  to,  48,  49,  346. 

kinds  of,  50-53. 

real,  53. 

personal,  53. 

mixed,  53. 

corporeal,  53. 

incorporeal,  53. 

right  to  protect,  287. 

wrongs  to  incorporeal  property,  490-497. 

wrongs  to  personal  property,  498-507. 

wrongs  to  real  property,  508-528. 
PROTEST  OF  NEGOTIABLE  INSTRUMENTS,  232. 

notice  of,  232. 
PUBLIC  DUTIES, 

of  private  persons,  345. 

of  officers,  341-344. 
PUBLICATION, 

notice  by,  122. 
PUBLICATION  IN  LIBEL  AND  SLANDER.  316. 


INDEX.  457 


[Reference*  are  to  sections.] 
PUNISHMENT  OF  CRIMES,  603,  621. 
PURCHASE, 

title  by,  158. 
PURCHASER, 

innocent,  241. 
PURPRESTURE,  397. 

Q 

QUA  SI  CORPORATION,  271. 
QUASI  CONTRACTS,  193. 
QUIT-CLAIM  DEED,  158. 
QUO  WARRANTO,  587,  588. 

R 

RAPE,  663. 
RATIFICATION. 

of  agent's  acts,  208. 

of  contract  by  infant,  196-200. 

of  contract  procured  by  duress,  201. 

of  contract  made  by  intoxicated  person,  203. 
REAL  PROPERTY,  53-68,  111-181,  508-528. 

title  to  in  United  States,  54-57. 

defined,  53,  59. 

Indian  titles,  57. 

boundaries  by  streams,  60. 

islands,  61,  62. 

fixtures,  63. 

boundary  lines,  65,  519. 

highway  as  boundary,  67. 

appurtenances,  68. 

estates  in,  111-144. 

fee-simple,  112. 

fee-simple  in  abeyance,  113. 

use  of  word  heirs,  114,  139. 

life  estate,  115. 

rights  of  life  tenant,  116-119. 

estates  for  years,  120. 

emblements,  1 17,  120. 

rents,  121,  121. 

term  of  tenancy,  122. 


458  INDEX- 

[References  are  to  sections."] 
REAL  PROPERTY— Continued. 
distress,  123. 
estate  at  will,  125. 
estate  at  sufferance,  126. 
base  fee,  127. 
conditional  fee,  128. 
estate  tail,  129,  130. 
curtesy,  131. 
dower,  132,  133,  163. 
estates  upon  condition,  134-137. 
remainders,  138. 
rule  in  Shelley's  Case,  139. 
executory  devises,  140. 
reversions,  141. 
estates  in  severalty,  142. 
joint  tenancy,  143. 

estate  by  entirety,  143. 

estates  in  common,  144. 

title,  how  acquired,  145-174. 

occupancy, 146. 

adverse  possession,  147. 

occupying  claimants,  148. 

descent,  19,  150,  151. 

devise  and  wills,  152-157. 

purchase,  158. 

title  bond,  158,  159. 

warranty,  covenants  of,  158. 

deeds  of  conveyance,  158,  160-169. 

deeds  of  lalid  held  adversely,  160. 

forms  of  deeds,  161. 

recording  deeds,  162. 

execution  of  deeds,  163. 

deeds  of  guardians,  164. 

deeds  of  partners,  165. 

deeds  by  corporations,  166. 

power  of  attorney,  167. 

deeds  by  officers,  168. 

description  of  in  deed,  169. 

eminent  domain,  170-172. 

escheat,  173. 

forfeiture,  174. 

administrator  and  executor — rights  in  real  estate,  180,  181. 


index.  459 


[References  are  to  sections.'] 
REAL  PROPERTY—  Continued. 

contract  for  sale  under  statute  of  frauds,  266. 

owner,  rights  of,  508. 

dispossession.  509. 

unlawful  detention,  510. 

remedies  for  injuries  to,  511,  512. 

injuries  to,  512. 

waste,  513-515. 

remedies  for  waste,  515. 

nuisances  affecting  land,  516,  517. 

remedies  for,  517. 

boundaries  of,  519. 

trespass  upon,  518,  520. 

who  may  be  trespasser,  520. 

license  to  enter  upon,  521-528. 

implied  license,  522. 

express  license,  523. 

effect  of  statute  of  frauds  on  license,  524. 

license  by  law,  525-527. 

condemnation  proceedings,  527. 

effect  of  exceeding  license,  528. 

remedies  for  wrongs  to,  511,  515,  517. 
RECOGNIZANCE,  194. 

RECORD, 

contracts  of,  194. 
RECOVERIES, 

common,  129. 
REGISTRATION  OF  DEEDS,  162. 

RELEASE, 

part  payment  as  consideration  for,  253. 

mutual  by  creditors,  254. 

of  disputed  claims,  255. 
RELIEFS,  88,  101. 
REMAINDER, 

estate  in,  138. 

vested  and  contingent,  138. 
REMEDIAL  STATUTES, 

how  construed,  28. 

REMEDIES, 

law  of  place,  17. 


460  INDEX- 

[References  are  to  sections, ,] 

RENTS, 

defined,  79,  121. 

■when  due,  121. 

how  payable,  122. 

apportionment  of,  124. 

distress  for,  123. 

forfeiture  for  non-payment,  121. 

effect  of  destruction  of  premises,  121. 

REPEAL, 

by  implication,  30. 

of  repealing  statute,  effect  of,  30. 
REPRESENTATION, 

in  insurance  contracts,  246. 

fraudulent,  368-380. 

false  by  infant,  198. 

distinguished  from  warranty,  246,  368. 

REPUTATION, 

right  to,  47,  305. 

defamation,  305-330. 
BES  GESTjE,  565. 
REVERSION, 

estates  in,  141. 
REVOCATION, 

of  will,  155. 

of  agency,  209. 

of  dedication  of  highway,  73. 

of  license  to  enter  on  land,  523. 
RIGHT  OF  MARRIAGE, 

under  feudal  system,  84,  104. 
RIGHT  OF  WARDSHIP, 

under  feudal  system,  84,  103. 
RIGHT  OF  WAY,  73-75. 

by  prescription,  73. 

by  dedication,  73. 

by  statutory  proceedings,  73. 

private,  74. 

temporary,  75. 

implied,  74. 

by  grant,  74. 


INDEX.  461 

[References  are  to  sections.'} 


RIGHTS,  5,  40-49. 

moral  and  legal,  5. 

definition,  40. 

absolute  and  relative,  40. 

natural,  40,  41. 

of  personal  security,  42,  277-288. 

to  life,  43,  277. 

of  personal  liberty,  44,  289-296. 

to  health,  46. 

to  reputation,  47,  305. 

to  property,  48,  49,  346. 

civil  and  political,  332-350. 

of  suffrage,  333. 

to  assemble,  334. 

to  bear  arms,  335. 

to  freedom  of  speech  and  press,  336. 

to  office,  337. 

to  religious  liberty,  338. 

to  education,  339. 

against  unlawful  searches,  340. 

to  performance  of  official  duties,  341-344. 
to  make  contracts,  347. 
to  employ  labor  and  do  business,  348. 
to  marry,  443. 
RIOT,  664. 

RISK  IN  INSURANCE  CONTRACTS,  250. 
ROBBERY,  665. 
RULE  IN  SHELLEY'S  CASE,  139. 

s 

SALES  OF  PERSONAL  PROPERTY, 
title  by,  176. 
essentials  of,  210. 
existence  of  thing  sold,  211. 
stoppage  in  transitu,  right  of,  212. 
transfer  of  title,  212. 
delivt-ry  and  payment,  213. 
rescission  of,  for  fraud,  211. 
warranty  in,  I'll. 


462  INDEX. 

[References  are  to  sections.'] 
SALES  OF  PERSONAL  PROPERTY—  Continued. 
fraudulent  sales,  213. 
when  seller  retains  possession,  213. 
how  affected  by  statute  of  frauds,  270. 
memorandum  under  statute  of  frauds,  268-270. 

SALES  OF  LANDS, 

effect  of  statute  of  frauds  on,  266. 

note  or  memorandum  under,  268. 

by  executors  and  administrators,  180,  181. 

judicial  and  execution  sales,  176. 

in  partition  proceedings,  601. 
SATISFACTION, 

when  good,  600. 
SEDUCTION,  460,  666. 
SELF-DEFENSE,  287,  615. 
SENATE  AS  A  COURT,  532. 
SEVERALTY, 

estates  in,  142. 
SHELLEY'S  CASE, 

rule  in,  139. 
SHERIFF,  548. 
SHIP'S  HUSBAND,  207. 
SHIP'S  MASTER,  207. 
SIGNATURE, 

under  statute  of  frauds,  269. 

SILENCE, 

as  fraud,  365. 
SLANDER,  306-331.    See  Libel  and  Slander. 

SOCAGE, 
free,  982. 

SODOMY,  635. 
SOVEREIGNS, 

crimes  of,  624. 
SPECIAL  PROCEEDINGS,  585-602. 
STATE, 

contracts  of,  195. 


INDEX.  463 

{References  are  to  sections. 1 

STATEMENT, 

opening,  685. 
STATUS  AND  CONTRACT,  182. 
STATUTES,  24-30. 

of  United  States  and  states,  24. 

when  in  force,  24. 

validity  of,  25. 

must  not  violate  constitution,  25. 

retroactive,  26. 

prospective,  26. 

public,  27. 

private,  27. 

ex  post  facto,  26. 

remedial,  26. 

interpretation  of,  28. 

penal,  28. 

technical  words  in,  28. 

in  derogation  of  common  law,  28. 

judicial  legislation,  29. 

repugnant,  30. 
STATUTE  OF  FRAUDS,  260-270. 

origin  of,  260. 

provisions  of,  261. 

promises  of  executors  and  administrators,  262. 

debt,  default  and  miscarriage,  263. 

liability  must  be  collateral,  264. 

agreements  in  consideration  of  marriage,  265. 

contract  for  sale  of  lands,  266. 

agreements  not  to  be  performed  within  one  year,  267. 

note  or  memorandum,  268. 

signature  to  memorandum,  269. 

sale  of  goods,  270. 
STATUTE  OF  LIMITATIONS,  146,  147. 
STOPPAGE  W  TRANSITU,  212. 

STREAMS, 

land  bounded  by,  60. 
pollution  of,  60. 
use  of,  60. 

See  Navigable  Streams. 

STRIKES,  349. 


464  INDEX. 

[References  are  to  sections."] 
SUBINFEUDATION,  91. 
SUBPCENA,  562. 

SUBPCENA  DUCES  TECUM,  562. 
SUBSEQUENT  CONDITION,  137. 
SUCCESSION  TO  PERSONAL  PROPERTY, 

title  by,  176. 
SUFFERANCE, 

estates  at,  126. 
SUNDAY,  122. 

SUPREME  COURT  OF  THE  UNITED  STATES, 

powers,  7,  9. 

jurisdiction  of,  535. 
SUPREME  POWER  OF  STATE,  7. 
SURETY  DEFINED,  236. 

T 

TAIL, 

estates  in,  129,  130. 
TENANT, 

by  curtesy,  131. 
TENEMENT, 

denned,  59,  94. 
TENURES,  93-144. 

ancient,  93-106. 

modern,  107-144. 

in  United  States,  how  affected  by  feudal  system,  107-108. 
TERRITORIAL  COURTS,  544. 
TESTATE  AND  INTESTATE,  178. 
TIME, 

how  computed,  122. 
TITHES,  71. 
TITLE, 

in  real  estate,  how  acquired,  145-174. 

sources  of  in  United  States,  55,  109,  110. 

by  treaty,  56. 

derived  from  Indians,  57. 

by  occupancy, 146. 

by  adverse  possession,  147. 


INDEX.  465 

[References  are  to  sections."] 
TITLE— Continued. 

of  occupying  claimant,  148. 

by  marriage,  149. 

by  descent,  150. 

by  devise,  152. 

by  purchase,  158. 

by  partition,  601. 

bv  eminent  domain,  170-172. 

by  escheat,   173. 

by  forfeiture,  174. 
TITLE  TO  PERSONAL  PROPERTY, 

how  acquired,  176. 

by  occupancy, 176. 

by  increase,  17f>. 

by  confusion,  176. 

by  gift,  176. 

by  sale,  176. 

by  succession  or  descent,  176. 

by  bequest,  176. 

by  judicial  decree,  176.    • 

when  it  passes  under  contract  of  sale,  212. 

TITLE, 

slander  of,  312. 
TITLE  BOND,  158,  159. 

TRADE-MARKS  AND  TRADE  NAMES,  497. 
TREASON  AND  MISPRISION  OF  TREASON,  667. 

TREATIES, 

by  law,  14. 

lands  acquired  by,  56. 
TRESPASS, 

on  land,  518. 
malicious,  658. 

TRIAL, 

in  civil  cases,  557. 
in  criminal  cases,  677. 
in  equity,  581. 
in  admiralty,  584. 

TRUSTEES, 

frauds  of,  357. 


466  INDEX. 

{References  are  to  sections."] 
TRUTH, 

in  libel  and  slander,  320. 

u 

UNDERWRITER,  243. 

UNITED  STATES  COURTS.     See  Courts,  531-544. 

UNITED  STATES  COMMISSIONERS,  543. 

UNWRITTEN  LAWS,  32. 

USAGE, 

different  from  custom,  39. 

V 

VENDOR'S  LIEN,  80. 
VENUE, 

change  of,  679. 
VERDICT, 

in  civil  cases,  569,  570. 

criminal  cases,  690. 
VESTED  REMAINDER,  138. 

VICE-PRINCIPAL, 

denned,  488. 
VILLENAGE,  98. 
VOID  AND  VOIDABLE  CONTRACTS,  186. 

w 

WARDSHIP,  84,  103. 
WARRANTY  DEED,  158. 
WARRANTY, 

denned,  368. 

of  thing  sold,  211. 

of  title,  211. 

of  quality,  211. 

apparent  defects  not  covered  by,  211. 

in  insurance  contracts,  246. 

distinguished  from  representation,  246,  368. 
WARRANT  FOR  ARREST,  669. 

when  void  or  valid,  670. 
WASTE,  119,  513. 


INDEX.  4G7 

[References  are  to  sections.] 

WATER, 

right  to  use,  76. 

WAY, 

right  of,  73. 

WEEK,  122. 

WILL, 

estates  at,  125. 

WILLS. 

antiquity  and  origin  of,  153. 

modern,  creature  of  Roman  law,  153  [~  (j 

who  may  make,  154.  3  ^ 

nuncupative,  154.  LO  L) 

how  made  and  attested,  154.  (J 

how  revoked.  155.  >  " 

of  land,  how  executed,  156.  2  ZZ 

how  set  aside,  157.  ^  — \ 

foreign  wills,  156.  pq  ~j_ 

codicils  to,  154.  r~  ' 

WITNESS  I  :s.  H  > 

in  civil  cases,  562-566.  Ifl  < 

in  criminal  cases,  686.  "     H 

in  equity  cases,  581.  D 

in  admiralty  cases,  584.  J- 

privileged  communications,  563.  f~~ 

privilege  from  arrest,  296. 

WRIT  OF  CERTIORARI,  602. 

WRIT  OF  ERROR,  573. 

WRITTEN  CONTRACTS,  188. 

WRITTEN  LAWS,  10-12,  23-31. 

Y 

YEAR, 

how  computed,  122. 

agreement  not  to  be  performed  within,  267. 

YEARS, 

estates  for,  120. 


^^ '•'^t,-'il^-W"l,'<M'l*r'" 


UC  SOUTHERN  REGIONAL  LIBRARY  FACILITY 

ill 


AA    000  732  647    3 


r 

3 

cc  r 

l/Hd  i  - 
•   z 

J-  AJ    A 

m"!  H  uu  J 

n  i  -  - 

r  '  z 

n  >  1/1  c 

m  <  c  ~ 

•  n  z 

n  * 

r 


